[November 13, 2012]

Appellate Court Orders That Sears Kenmore Front-Loading Washing Machine Mold Litigation May Proceed As A Class Action

Jonathan D. Selbin of Lieff Cabraser Heimann & Bernstein, LLP, appellate counsel of record, announced that the Seventh Circuit Court of Appeals today ordered that consumers in six states - California, Indiana, Illinois, Kentucky, Minnesota and Texas - who allege that Sears sold them allegedly defective Kenmore front-loading "high efficiency" washing machines manufactured by Whirlpool may band together in a class action to hold Sears accountable. Sears sells hundreds of thousands of these washing machines nationwide each year.

Selbin commented, "The Seventh Circuit has reaffirmed that when a manufacturer sells a defective product to thousands of consumers, the doors to the federal courts - and justice - are not closed just because each consumer only suffered a few hundred or thousands of dollars in damages. We are gratified that our clients and the thousands of consumers like them will have their day in court."

In reaching its decision, Circuit Judge Richard A. Posner, writing for a unanimous court, stated, "The only individual issues - issues found in virtually every class action in which damages are sought - concern the amount of harm to particular class members. 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 . . ." (Opinion, at page 8.)

Background on the Front-Loading Washing Machine Litigation

Consumers in multiple states have filed separate class action lawsuits against Sears and Whirlpool. The complaints charge that certain front-loading automatic washers manufactured by Whirlpool and sold under the Whirlpool and Sears Kenmore brand names are defectively designed in that they are unable to adequately clean themselves and develop mold, often resulting in foul odors. Consumers have spent hundreds or thousands of dollars each on repairs and other steps to deal with these problems, none of which work.

In the Sears litigation, before United States District Court Sharon Johnson Coleman of the Northern District of Illinois, the complaint charges that the front-loading "high efficiency" Kenmore washing machines Sears has sold since 2001 are defective. As summarized by the appellate court, "[b]ecause of the low volume of water used in these machines and the low temperature of the water, compared to the volume and temperature of the water in the traditional top-loading machine, they don't clean themselves adequately and as a result biofilm-a mass of microbes-forms in the machine's drum (where the washing occurs) and creates mold, which emits bad odors. Traditional household cleaners do not eliminate the biofilm, the mold, or the odors." (Opinion, at page 3.)

The complaint also alleges that a flaw in the control unit in some of the washers causes them to stop suddenly. The district court denied certification of the class complaining about the mold defect and granted certification of the class complaining about the defect that causes the sudden stoppage.

In today's opinion, the appellate court reversed the district court's denial of class certification regarding the mold claim and affirmed the grant of class certification regarding the control unit claim.

Recently, in the Whirlpool litigation, the Sixth Circuit Court of Appeals upheld certification of an Ohio class charging that its front-loading washing machines suffer from the defect. In re Whirlpool Corp. Front-Loading Washer Products Liability Litigation, 358.89 C.3d 409 (6th Cir. 2012). Lieff Cabraser is court-appointed lead counsel in that case.

Consumers who have experienced mold or odor problems with their Whirlpool or Sears/Kenmore front load washers can report problems to Lieff Cabraser by visiting http://www.lieffcabraser.com/frontload.

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