On Monday, the Supreme Court sent Whirlpool Corp v. Glazer back to the Sixth Circuit for further consideration in light of Comcast Corp. v. Behrend, 569 U.S. — (2013). The decision was GVR’d, meaning that the Court granted the writ of certiorari, vacated the judgment, and remanded without reaching the merits.
In Glazer, as we discussed in May, the plaintiffs purchased front-loading Whirlpool washing machines that were allegedly susceptible to mold buildup. On appeal from certification of the class, Whirlpool argued, among other things, that the district court failed to conduct a “rigorous analysis” of the factual record before certifying the class. Because the case involved different washing machine designs and variations in consumer’s efforts to repair, the defendants contended that plaintiffs could not show commonality and that each class member’s claim would require individualized inquiries.
Affirming class certification (and citing the Third Circuit’s Comcast decision), the Sixth Circuit held that “courts need not resolve all factual disputes on the merits before deciding if class certification is warranted.” The court went on to conclude that the underlying causes of mold buildup and the sufficiency of Whirlpool’s warnings were capable of classwide resolution. In addition, although some class members had not suffered an actual injury, the Sixth Circuit rejected the argument that the class was overbroad.
Comcast could bear upon Glazer in several ways. Building on Wal-mart v. Dukes, the Court in Comcast concluded that the class was improperly certified under Rule 23(b)(3). The appellate court there was faulted for failing to resolve factual disputes that were key to the Rule 23(b)(3) requirements. In particular, the Court determined that the plaintiffs’ damages evidence failed to match up with their theory of liability. Writing for the majority, Justice Scalia stressed that the court must measure damages resulting from “the particular [] injury on which [] liability is premised.” As applied to the Comcast plaintiffs, their “model f[ell] far short of establishing that damages are capable of measurement on a classwide basis.” Comcast’s emphasis on rigorous fact finding and scrutiny of damages evidence could be relevant to Glazer on remand. As discussed above, Whirlpool has argued that the fact findings in Glazer were insufficient, and that the no-injury class was overbroad.
