Plaintiffs in Moldy Washing Machine Litigation May Proceed as a Class

A recent Seventh Circuit decision, authored by Judge Richard Posner, could have an impact on future class action litigations. In Butler, et al. v. Sears, Roebuck & Co.,—a lawsuit involving product defects that allegedly cause mold buildup in washing machines sold by Sears between 2001 and 2004—the Seventh Circuit sought to clarify “predominance,” a concept that, in the context of class action litigation, has been shrouded by ambiguity. In its opinion, the Seventh Circuit explained that “[p]redominance is a question of efficiency.” Put simply, predominance asks whether it is “more efficient . . . to decide some issues on a class basis or all issues in separate trials?”

Keeping efficiency in mind, the Seventh Circuit reversed the trial court’s decision denying plaintiffs’ request for class certification. The Seventh Circuit determined that plaintiffs’ lawsuit should proceed as a class action for three independent reasons. First, the proposed class is united by a common question: “were the machines defective in permitting mold to accumulate and generate noxious odors?” According to the court, the fact that the washing machines were “differently defective and some perhaps not at all” did not present an obstacle to class certification. Second, the court explained that it is more effective to determine liability and damages on a class basis where, as here, the cost imposed on the individual consumer is not “large enough to justify the expense of an individual suit.” Finally, the court found no reason to depart from a recent Sixth Circuit decision upholding the certification of a single mold class in an identical case filed against Whirlpool.

Although Sears has petitioned for en banc review, the Seventh Circuit’s decision—if upheld—could have a dramatic impact on class action litigation going forward. Specifically, Judge Posner has been identified by The Journal of Legal Studies as the most cited legal scholar of the 20th Century. To that end, there is no question that the class action plaintiffs’ bar will be eager to utilize this opinion, and its cost-benefit approach, to support their motions for class certification and subsequent appellate challenges if their motions are denied.