A Class-Action Blow to U.S. Manufacturing; Supreme Court Whirlpool Case to Determine Fate

The Washington Times (Washington, DC), October 9, 2012 | Go to article overview

A Class-Action Blow to U.S. Manufacturing; Supreme Court Whirlpool Case to Determine Fate


Byline: Tiger Joyce, SPECIAL TO THE WASHINGTON TIMES

The U.S. Supreme Court has until Friday to determine whether it will hear an appeal involving a class-action lawsuit against Whirlpool, the nationAEs largest washing machine manufacturer. Until then, the future of all manufacturing in the United States hangs in the balance.

The case is one of dozens that class-action attorneys have brought against every major maker of washing machines sold in the United States. If the high court ultimately lets stand the legal theories of liability these attorneys are advancing, the resulting flood of litigation will not be contained in the laundry room. Virtually every U.S. producer of durable goods, for which August orders alarmingly plummeted 13 percent, will be subjected to the constant threat of crippling litigation and the erosion of global competitiveness that goes with it.

The contingency-fee lawyers suing Whirlpool claim that all modern water- and- energy-efficient, fabric-friendly, front-loading washing machines arenAEt good enough. Why? If not properly maintained, these washers can develop a moldy, musty odor. The lawyers acknowledge this is true of older washers, too, but they say modern washers smell more often. Estimates of potential jury awards against the industry overall range into billions of dollars.

Like many class actions ginned up by plaintiffsAE lawyers, this case does not lack for gall in its intent to inflate the class size and thus the enormity of a damages award. For example, it demands payments to the overwhelming majority of class members who have never experienced a moldy odor in their washers, including people who have happily owned their machines for 10 years or more.

Meanwhile, Consumers Union reliability surveys indicate that less than 1 percent of owners of modern washing machines report a smell four years after purchase. Data from Sears, one of the nationAEs largest sellers and servicers of washing machines, similarly show only 2 to 3 percent of consumers reporting such problems. Such paltry complaint numbers, without a class actionAEs multiplier effect, could never deliver the mega-jackpot that big-time plaintiffsAE attorneys now often seek.

So the question before the Supreme Court, should it choose to hear the defendantAEs appeal, is one of class certification. That decision will go a long way in determining the final outcome of the suit. Certification of a huge class all but guarantees a settlement favorable to the plaintiffsAE lawyers because few companies, regardless of how strong their case may be, will risk a jury verdict that could cost them billions. …

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