Tom, the issue was Whirlpool et al. objecting to how many class members could be certified and I just want to emphasize that this was a procedural ruling, not any judgment on the merits. The plaintiffs are asking for a very expansive class, including people who might have problems in the future, which (I am cynically pointing out) benefits the Big Law firms involved in the action, but doesn't increase damages due to the individual plaintiffs who actually have experienced smelly washers. Believe me, you wouldn't see this high priced legal talent deployed if a large class couldn't be certified. That means a bigger pot of fees at the end of the rainbow. From a plaintiff lawyer's point of view, that's what it's all about.
The lower courts concluded that the larger class was proper, and the Supreme Court did not see a basis for review.
That doesn't mean I think the plaintiffs don't have a case; I think they may very well have one, and certainly they've presented enough evidence to be heard in a court of law.
For those who are interested, a link to Whirlpool's brief is here:
http://sblog.s3.amazonaws.com/wp-content/uploads/2012/11/12-322-Cert-Petition-702880942_121.pdf
The plaintiff's response is here. Read it if you want to understand how the courts could entertain the suit:
http://sblog.s3.amazonaws.com/wp-co...ondents-Brief-in-Opposition-to-Certiorari.pdf
It will be interesting to see the factual issues kicked around at trial, if there is not a settlement. The plaintiffs say that all of the washers have these common faults: "None prevents mold from forming, eliminates mold during a self-cleaning cycle, or allows consumers to remove mold manually."
The U.S. District Court defined the issues to be resolved as: 1) the
existence of a design defect; (2) whether that defect was a “substantial factor” leading to the mold problem in all machines; (3) Whirlpool’s knowledge of the design defect;(4) whether Whirlpool was required to warn purchasers about the mold problem prior to sale; and (5) whether the withheld information about the mold problem was “material,” which triggers a presumption of reliance under Ohio law. These are the things that have to be resolved at trail before any liability is determined.
Hope that helps with some questions presented here.