In a victory for class action plaintiffs, the Sixth Circuit has affirmed the certifcation of the class in In Re: Whirlpool Corporation Front-Loading Washer Products Liability Litigation, and distinguished the Supreme Court's decision in this Term in Comcast v. Behrend. The Sixth Circuit joins the Ninth in rejecting the argument that Comcast requires a classwide measurement of damages as a prerequisite to class certification: "it remains the ‘black letter rule’ that a class may obtain certification under Rule 23(b)(3) when liability questions common to the class predominate over damages questions unique to class members."
Today's decision specifically approves the certification of a class regarding liability issues only, notwithstanding the need to calculate damages individually. And "[w]here determinations on liability and damages have been bifurcated, see Fed. R. Civ. P. 23(c)(4), the decision in Comcast—to reject certification of a liability and damages class because plaintiffs failed to establish that damages could be measured on a classwide basis—has limited application."
