Class Fighting Sears Washer Mold Revived

     CHICAGO (CN) – Sears, Roebuck & Co. will have to face class action claims over mold buildup in allegedly defective Kenmore-brand washing machines, the 7th Circuit ruled.
     The class is suing Sears under the warranty statutes of six states over allegedly defective washing machines purchased after 2001.
     One group argued that Kenmore “high-efficiency” front-loading washers did not clean themselves adequately because of low water level and temperature. As a result, mold buildup on the washer drum would allegedly cause foul odors. Common household cleaners are inadequate to eliminate the mold, the class claimed.
     A second group alleged that faulty soldering of the washers’ control unit would shut down the machines mid-cycle. Sears allegedly knew of the problem but charged each owner hundreds of dollars to repair the unit.
     U.S. District judge Sharon Coleman allowed the control-unit class to proceed, but denied certification to the mold class. Coleman accepted Sears’ argument that because Whirlpool, the original manufacturer, made several design modifications, models would differ in their level of defect. As a result, she determined, individual cases of fact predominate the suit.
     But the 7th Circuit rejected this reasoning Tuesday and reinstated the mold class.
     “The basic question in the litigation – were the machines defective in permitting mold to accumulate and generate noxious odors? – is common to the entire mold class, although the answer may vary with the differences in design,” Judge Richard Posner wrote for the unanimous three-judge panel. “The individual questions are the amount of damages owed particular class members.”
     Trial courts must decide whether common questions of law or fact predominate over individual questions when making certification decisions.
     In this case, “a class action is the more efficient procedure for determining liability and damages in a case such as this involving a defect that may have imposed costs on tens of thousands of consumers, yet not a cost to any one of them large enough to justify the expense of an individual suit,” the court determined.
     Because design changes did not eliminate the odor problem in most cases, it is possible that customers who bought later in the product cycle would experience the problem.
     “Should it turn out as the litigation progresses that there are large differences in the mold defect among the five differently designed washing machines, the judge may wish to create subclasses; but that possibility is not an obstacle to certification of a single mold class at this juncture,” Posner wrote.
     The eight-page ruling also notes that the 6th Circuit recently upheld certification of an almost-identical mold class in a suit against Whirlpool.
     “For us to uphold the District Court’s refusal to certify such a class would be to create an intercircuit conflict – and a gratuitous one, because, as should be apparent from the preceding discussion, we agree with the Sixth Circuit’s decision,” Posner wrote.
     The judges also affirmed certification of the control-unit class.
     The 7th Circuit has heard multiple washing machine class actions against Sears. Most recently, the court begrudgingly advanced a set of “copycat” suits over machine drums. The ruling could force Sears to fight claims across the country that it falsely advertised the drums as being made entirely of stainless steel.

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