Perhaps coming as no surprise in the wake of the seeming contradictory Amgen and Comcast decisions (see my March 6, 2013 and March 30, 2013 posts), the Sixth Circuit decided on July 18, 2013, to ignore Comcast and follow Amgen, in reaffirming class certification in In re Whirlpool Front-Loading Washer Prods. Liability Litig., a defective washing machine case in which plaintiffs allege that certain front-loading machines have a design defect that allows for the growth of mold or mildew.
First faced with a certified the class in 2012, 678 F.3d 409 (6th Cir. 2012), Whirlpool sought certiorari from the U.S. Supreme Court. The Court granted certiorari, but then decided Comcast v. Behrend, and instead of deciding Whirlpool, vacated and remanded the case for reconsideration.
In Comcast, the Supreme Court held that a class cannot be certified when “individual damage calculations will inevitably overwhelm questions common to the class.” 133 S. Ct. 1426 (2013). The Sixth Circuit found Comcast’s concern irrelevant to class certification here because, though individualized damages surely exist, the Sixth Circuit was only affirming the certification of a “liability” class. In a sense, the Sixth Circuit was following the lead of the Seventh Circuit, which has sanctioned the use of bifurcated proceedings. See McReynolds v. Merrill Lynch, 772 F.3d 482 (7th Cir. 2012). (See my Sept. 27, 2012 post.) Indeed, Butler v. Sears, Roebuck & Co., 702 F.3d 359 (7th Cir. 2012), another washing machine design defect case in which the Seventh Circuit, too, held that common issues could be certified while individualized damages issues could be severed from the case, has been remanded in light of Comcast as well.
Although remanded in light of Comcast, the Sixth Circuit relied on Amgen, in which the Court held in the securities context that because materiality is an element of a securities cause of action, the only issue for class certification stage was whether the question of materiality was a predominant or an individualized inquiry. Justice Ginsburg reasoned that materiality is an objective question that can be proved through evidence common to class.
The Sixth Circuit in Whirlpool, having splintered the liability question from the damages issue, reasoned that liability was an issue that could be proven through evidence common to the class, and class certification was therefore appropriate under Amgen. “Following Amgen’s lead, we uphold the district court’s determination that liability questions common to the Ohio class — whether the alleged design defects … proximately caused mold to grow in the machines and whether Whirlpool adequately warned consumers about the propensity for mold growth — predominate over any individual question.”
As expected, courts looking to avoid Comcast’s clear holding — that cases involving individualized damages cannot be certified — will look to Amgen and previous Circuit holdings that allow for bifurcation, to allow actions to be certified. Such bifurcation, whether in the form of issue certification or otherwise, has yet to be ruled on by the Supreme Court, and we can expect the Amgen/Comcast predominance debate to continue.