* Appeals court reverses decision denying class status
* Sears had argued that design changes made claims
dissimilar
Nov 13 (Reuters) – Customers suing Sears, Roebuck and Co
over alleged mold defects in their Kenmore-brand
washing machines can bring their claims as a class action, a
federal appeals court ruled on Tuesday.
The 7th U.S. Circuit Court of Appeals, in Chicago, found
that customers who sued over alleged mold buildup in the
machines had enough in common to band together and pursue their
claims collectively.
“It is more efficient for the question whether the washing
machines were defective – the question common to all class
members – to be resolved in a single proceeding than for it to
be litigated separately in hundreds of different trials,” Judge
Richard Posner wrote for a unanimous three-judge panel.
Customers in six states who purchased Sears’ Kenmore-brand
washing machines after 2001 sued the company in federal court in
2006. One group of consumers claimed that the front-loading
machines, with low water level and low water temperature, did
not clean themselves adequately. The result was a buildup of
mold in the drum that emitted a bad odor, the owners claimed.
A second group of consumers said a defect in the control
unit caused the machines to stop mid-cycle.
Sears argued that the customers claiming mold problems could
not sue together because the machines’ manufacturer, Whirlpool
Corp, had made a number of design modifications that
undermined the similarity of individual owners’ experiences. The
trial judge agreed, refusing to certify the class on the mold
claims. But the 7th Circuit reversed that ruling on Tuesday.
“Sears does not contend that any of Whirlpool’s design
changes eliminated the odor problem but only that they reduced
its incidence or gravity,” Posner wrote. If the design changes
greatly reduced the amount of mold buildup, the lower-court
could then break the class into smaller groups, he added. Posner
noted a decision by the 6th Circuit granting class status to a
group of Ohio consumers who sued Whirlpool over similar mold
claims.
In the same opinion on Tuesday, the 7th Circuit panel also
upheld the lower-court judge’s decision to allow the customers
alleging control-panel defects to proceed as a class.
Sears, in a statement, said the ruling conflicts with
Supreme Court precedent, and that the company would likely
request a rehearing before a larger panel of the court.
“An overwhelming majority of our customers have never
experienced any mold or odor in these machines, even after many
years of use,” the company said, citing service data. Four of
the six plaintiffs named in the lawsuit admitted they have had
no mold problems, Sears said.
Whirlpool did not immediately respond to a request for
comment.
Jonathan Selbin, a lawyer for the consumers, welcomed the
decision.
“It’s a reaffirmation from a very influential court that
when a company sells a defective product to thousands of
consumers, the doors to the courthouse remain open because they
can band together in a class and level the playing field,”
Selbin said.
The case is Butler et al v. Sears, Roebuck and Co, 7th U.S.
Circuit Court of Appeal, Nos. 11-8029, 12-8030.
