As we previously reported back on May 4, 2012, a three-judge panel of the Sixth Circuit, relying heavily on the Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2451 (2011), affirmed class certification in a multi-district litigation involving alleged design defects leading to mold and mildew in certain front-load washing machines made by Whirlpool and sold to Ohio consumers.  See Opinion, In re Whirlpool Corporation Front-Loading Washing Products Liability Litigation, Case No. 10-4188 (PDF).  The panel’s decision is notable for its conclusion that the class could be certified even though not all class members had actually suffered injury.

As expected, Whirlpool has filed a petition for rehearing en banc arguing that the panel’s decision conflicts with binding Supreme Court authority and decisions of the Sixth Circuit.  In its en banc petition, Whirlpool advances three main arguments justifying en banc review.  First, Whirlpool argues that the panel’s ruling on the commonality requirement under Rule 23(a)(2) of the Federal Rules of Civil Procedure conflicts with the Supreme Court’s Wal-Mart decision because, among other things, the panel ignored that commonality requires proof that all class members have suffered the same injury.  Whirlpool asserts that under Wal-Mart, proof that class members have suffered the same injury is “not only relevant but essential to class certification.”  Second, Whirlpool argues that the panel gave short shrift to Federal Civil Rule 23(b)(3) and effectively eliminated the demanding certification requirements of predominance and superiority, once again in conflict with Wal-Mart as well Sixth Circuit decisions. 


Third, and finally, Whirlpool argues that en banc review is warranted because the panel’s holding conflicts with Sixth Circuit decisions recognizing that “a predominance analysis must consider the elements and defenses of the underlying claims to determine how a class trial on the merits would be conducted.”  Whirlpool contends that the panel failed to consider the elements of the Ohio tort claims that it certified, which include tortious breach of warranty, negligent design, and negligent failure to warn.  Whirlpool highlights that most of the class members have not experienced any problems with mold and mildew, and thus they have no tort claim under Ohio law. 

Although the Sixth Circuit’s grants of en banc review are infrequent, this case has attracted the attention of several amicus parties that have supported Whirlpool’s petition for rehearing, including the Association of Home Appliance Manufacturers, the Ohio Manufacturers Association, the Ohio Business Roundtable, DRI – The Voice of the Defense Bar, and the Product Liability Advisory Council.  Still other parties supporting Whirlpool’s en banc petition include the Business Roundtable, the Chamber of Commerce of the United States of America, and the National Association of Manufacturers, who are being represented by Pierre Bergeron, Phil Calabrese, and Emily Root of Squire Sanders.  We’ll be watching this case closely.