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11th Cir. Reverses Class Cert. in Frigidaire 'Smelly Washer' Case

By Jonathan R. Tung, Esq. on March 25, 2016 1:59 PM

The Eleventh Circuit recently reversed class certification for California and Texas plaintiffs who sought to bring a massive mass tort against home appliance maker, Electrolux. The case, which is about class certification of groups of plaintiffs in California and Texas, involved the unfortunate tendency of the company's washers to trap water and mold up.

Electrolux, dba Frigidaire still has some options litigation wise, but the circuit's decision can still be seen as a victory, at least because it has a tendency to make plaintiffs' lawyers jobs that much more difficult.

Smelly Washers

Frigidaire had marketed and sold front loading washers for many years during a cultural and societal shift towards "greener" home appliances that were not only more energy efficient, but also used less water. Government programs were put into place to encourage consumers to purchase such appliances in place of the older technology.

In the case of Electrolux's front loading washers, the design has the unfortunate flaw of trapping water underneath a major gasket leading to trapped moisture and mold.

The plaintiffs were individuals in California and in Texas who sought to certify a class in federal court in order to simplify suit. U.S. District Court Judge Lisa Godbey Wood determined that whatever doubts as to the appropriateness of class certifications ought to be ruled in favor of plaintiffs bringing the action.

You C.A.N.T. Do That

On appeal, the Eleventh Circuit reversed the certification and said that the lower court got things exactly wrong. In suit, it is the plaintiffs who seek class that carry the burden to show that all the Rule 23(a) requirements of class certification have been met: Commonality, Adequacy, Numerosity and Typicality must all be met. If any doubts still remain as to whether or not certification is proper, then no class should be certified.

In this particular case, the defense questioned just how predominant issues of commonality really were with regards to the individuals in the class. Both California and Texas laws require that consumers claiming injury present evidence of relying on false or misleading advertising or marketing. Strategically, this would mean that plaintiffs' lawyers would have to interview all of the plaintiffs as to how they were injured. Additionally, there are additional onerous procedural steps plaintiffs must take.

In the Shadow of Wal-mart v. Dukes

Class action certification has gotten only more difficult for plaintiffs since the recent case of Wal-mart v. Dukes which has since held for the rule that plaintiffs lawyers must search more probingly into the pre-certification elements to determine, for example, whether common issues really do predominate.

The ruling is a win for Electrolux because the plaintiffs' lawyers will have to either bring more broken up individual cases, or spend more time trying to certify again in the future. By that time, plaintiffs' time or patience could just as easily wash away.

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