For many months, the class action defendants’ lobby has highlighted two Circuit Court opinions as the latest poster boys in a campaign whose ultimate goal is to abolish class actions. In those cases, the courts independently certified nationwide classes of consumers who purchased two different brands of washing machines that proved to be defective. Neither case was from a “magic jurisdiction” or “judicial hellhole,” defendants’ incendiary terms for any venue that certifies a class action. On the contrary, the Sixth Circuit is not notably friendly to class actions, and the Seventh Circuit’s opinion was written by none other than Judge Posner, who has written some famously negative class action opinions, see, e.g., In re Rhone-Poulenc Rorer, Inc., 51 F.3d 1293 (7th Cir. 1995), as well as some decisions approving class certification.
The Sixth and Seventh Circuits originally approved class certification in these cases in 2012. Butler v. Sears, Roebuck & Co., 702 F.3d 359 (7th Cir. 2012); In re Whirlpool Corp. Front-Loading Washer Products Liability Litigation, 678 F.3d 409 (6th Cir. 2012). Defendants in both cases filed petitions for certiorari. After the Supreme Court of the United States decided Comcast v. Behrend, 133 S.Ct. 1426 (2013), discussed here, the Court remanded both cases for further consideration in light of Comcast. Both Circuits reaffirmed their prior opinions, without dissent in either case, correctly concluding, in well-reasoned opinions, that Comcast had no effect on those rulings. Butler v. Sears, Roebuck & Co., 727 F.3d 796 (7th Cir. 2013); In re Whirlpool Corp. Front-Loading Washer Products Liability Litigation, 722 F.3d 838 (6th Cir. 2013). Defendants again petitioned for certiorari.
The current Supreme Court has been almost reflexively pro-defendant in class action cases, whether in the consumer, antitrust, or employment areas. Thus, defendants had reason to believe that the Court would grant review and reverse class certification in these cases. But yesterday, the Court rightly denied certiorari, allowing the class certifications to stand. Those rulings represent a victory for consumers, and a rejection of those who seek to disembowel Rule 23.
The defendants’ propaganda machine will likely not take this lying down. Even before the Supreme Court ruled, the defendants’ lobby was vilifying the Sixth and Seventh Circuits for their rulings. At a recent seminar sponsored by a New Jersey organization that advocates the views of class action defendants (in the guise of “lawsuit reform”), I and the others in attendance heard an attorney from a major class action defense firm charge that Judge Posner’s decision was motivated by some sinister, but unspecified, personal interest or relationship, an appalling ad hominem attack on one of America’s most distinguished and scholarly judges. Ironically, as a pillar of the “Law and Economics” movement, Judge Posner is more likely to be in defendants’ corner than in plaintiffs’. But the holy warriors against class actions cannot countenance any decision that approves a class action, and so they attack even the likes of Judge Posner for having the temerity to decide a case on the merits rather than to elevate ideology above integrity.
More sober defense advocates are not reacting with such hysteria or predicting the apocalypse. The Supreme Court’s decision to deny certiorari in the washing machine cases does not constitute a ruling on the merits. Nor does it portend a change in the Court’s attitude toward class actions generally. Nonetheless, the atmospherics of the rulings in these cases may perhaps signal to lower courts the need to restore some balance in class action decisions, which lately have too often mistakenly tilted away from certification. For example, in some recent consumer class action cases, the Third Circuit has come perilously close to eliminating plaintiffs’ ability to obtain class certification at all. Refreshingly, the Supreme Court has shown that class certification is not automatically inappropriate, a faint endorsement, but a good starting point.