Appellate Court Orders That Sears Kenmore Front-Loading Washing Machine Mold
Litigation May Proceed As A Class Action
NEW YORK -- November 13, 2012
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
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
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
Lieff Cabraser Heimann & Bernstein, LLP
Jonathan D. Selbin, 212-355-9500
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