Chief Justice John Roberts and his colleagues on the Supreme Court get a quick start in the new year. They are scheduled on Jan. 10 to hear arguments in two class-action cases, Sears v. Butler and Whirlpool v. Glazer. Both concern Whirlpool clothes washers sold by Sears, and both come to the high court from lower circuits that essentially thumbed their noses at the nation's most senior justices.
The nose-thumbing was in response to two decisions, Walmart v. Dukes in 2011 and Comcast v. Behrend in 2013, in which the Supreme Court set forth some much-needed ground rules for class-action litigation. The justices said class actions must involve questions of law or fact that predominate among members of the affected class, and that there must be concrete class-wide proof of that predominance. In Butler and Glazer, however, the 6th and 7th Circuit Courts of Appeals said the mere indication of a product defect was sufficient to justify class-action litigation on behalf of all who bought the product.
The Supreme Court was simply applying common sense in saying that it’s not enough that a handful of Fords won’t start. To be a legitimate class-action case, there must be many Fords that won’t start as a result of a common defect. Under the lower courts’ approach, it wouldn’t matter that one Ford didn’t start because it was out of gas, another because its battery was dead and a third because the driver flooded the induction system. Every Ford owner would be a member of the class, thus effectively transforming all product litigation to class-action status and creating an irresistible get-rich-quick scheme for plaintiffs' attorneys.
There is another vitally important principle at stake here: the preeminence of the Supreme Court. If the justices do not respond decisively, the Supreme Court will be supreme in name only. To be sure, sometimes court decisions invite legitimate differences of interpretation about either intent or application. That’s why multiple precedents are healthy, as they provide the occasions for clarification and refinement in the justices' opinions.
But there doesn't appear to be a lot of room for disagreement about the high court's substance or intent in either Walmart or Comcast: There has to be a bunch of people dealing with a common defect before they can be considered class members for purposes of liability litigation. The judges in the lower courts simply opted, for whatever reason, to ignore the obvious application of that requirement to the Butler and Glazer cases.
The alleged defect involved here is a musty scent emitted by some of the washers. It should be noted that the washers were among the first designed by Whirlpool in compliance with energy-saving regulations initially proposed by the Clinton administration and promulgated by the Bush administration beginning in 2001. Whirlpool has since sold more than four million of the units in question. If the Supreme Court fails to exert its authority in these two cases, incalculable damage will be done to American manufacturing and jurisprudence.
Editor's Note: This editorial has been corrected to say Whirlpool clothes washers instead of dishwashers, as it did when originally posted.