In a decision sure to reverberate among the class action bar, the Sixth Circuit recently re-affirmed the certification of a liability-only class of Ohio consumers, despite the Supreme Court’s directive that it reconsider its previous affirmation of the same class in light of the Supreme Court’s recent decision in Comcast v. Behrend,133 S. Ct. 1426 (2013).

In 2010, the district court for the Northern District of Ohio certified a liability-only class of Ohio residents who had purchased Whirlpool front loading washing machines.  The class claims alleged that design defects in the washing machines contributed to the production of mold and mildew, leading to ruined clothes and foul odors. 

On appeal, the certification order was affirmed by the Sixth Circuit but subsequently vacated by the Supreme Court, which directed the Sixth Circuit to re-consider the class certification in light of its decision in Comcast.  On remand, the Sixth Circuit again affirmed the class certification, finding that the certification of a liability-only class did not run afoul of Comcast, which turned on a problematic class-wide damages model.  In so holding, the Sixth Circuit noted that the certification of only a liability-only class achieved economies of time and success and, generally satisfied the predominance standard even if damages cannot be provable in the aggregate.  See In re Whirlpool Corp. Front-Loading Washer Prod. Liab. Litig., 6th Cir. No. 10-4188 (July 18, 2013).