by Brian Wolfman
Last September, the Whirlpool Corporation filed a cert petition in Whirlpool Corp. v. Glazer. The case has been on hold pending the Supreme Court's decision in Comcast Corp. v. Behrend, which was issued this past Wednesday. (Go here and here for our posts on the Comcast ruling.)
Now that Comcast has come down, the Supreme Court has re-listed the petition in the Whirlpool case for tomorrow's conference. The Court could deny the petition outright, grant the petition for plenary review for the Term starting in October, or grant the petition and send it back to the 6th circuit for reconsideration in light of Comcast.
In the Whirlpool case, the plaintiffs allege that their Whirlpool washing machines have a design defect that makes them prone to mold and noxious odors. The Sixth Circuit decision affirmed class certification. Whirlpool's cert petition includes three questions presented. Here's the first one:
Whether a class may be certified under [Federal] Rule [of Civil Procedure] 23(b)(3) even though most class members have not been harmed and could not sue on their own behalf.
The cert opposition disputes the factual basis for the question presented, saying that Whirlpool is fibbing when it asserts — as it does in the body of its cert petition — that the great majority of class members have not been harmed. But that aside, Whirlpool's argument is essentially that the absent class members have to prove, at the class-certification stage, that they have suffered the alleged harm, or they do not have standing to pursue the class action in a federal court.
At the end of its cert petition, Whirlpool argues that the Court should take the case to alleviate an alleged "crisis" of class-action filings in the federal courts:
[T]hese moldy odor cases are only a small part of a wider class-action crisis in the lower courts.
Class action filings, particularly in the consumer arena, are increasing at a dramatic pace.
What precipitated the docket crisis in the federal courts, according to Whirlpool? It's none other than the Class Action Fairness Act of 2005 (CAFA)! That's the class-action law that the big corporations lobbied for. CAFA's principal purpose was provide that most class actions filed in state court involving class members and defendants from different states would now have to be litigated in federal court. As Whirlpool puts it:
Since CAFA was enacted just over seven years ago, tens of thousands of class actions have been filed in or removed to federal court. A Federal Judicial Center study analyzing data through June 2007 put the annual number of new class actions in federal courts at between 4,000 and 5,000.
Got that? The big companies wanted to bring most class actions into federal court, and the law that the big companies wrote to do that — CAFA — is having the exact effect that they wanted it to have. But that law's success is clogging the federal courts with class actions, so let's kill them off.