by Deepak Gupta
Despite an unusually full-throated public-relations campaign and amicus effort by the tort-reform lobby, the Supreme Court this morning turned aside three petitions for certiorari from the Sixth, Seventh, and Ninth Circuits concerning the propriety of class certification in cases alleging that moldy washing machines sold to consumers were defective.
Today's denial is a win for consumers and a temporary stay of execution for the wounded-but-still-kicking class action device (at least outside the securities context). If the Wall Street Journal's multiple editorials on the subject are to be be believed, these cases represent a threat to American business and an opportunity for the Justices to rein in frivolous suits. But Judge Posner, who wrote one of the three decisions below, pointed out that attacks on the merits of the case provide no basis for denying class certification. “Sears argues that most members of the plaintiff class did not experience a mold problem,” noted Posner. “But if so that is an argument not for refusing to certify the class but for certifying it and then entering a judgment that will largely exonerate Sears—a course it should welcome.”
The cases are Sears v. Butler, 13-430, Whirlpool Corp v. Glazer, 13-431 and BSH v. Cobb, 13-138. In a worrisome development, the three cases were considered at four of the Justices' private conferences, starting back in November, leading to widespread speculation that the Court was actively considering granting the petitions (or perhaps that one or more Justices were writing a dissent from denial). But today, all three were denied without comment.
Emily Bazelon, who's been covering these cases at Slate, has some thoughts on today's denial.