Sears, Whirlpool Seek to Decertify Moldy Washer Class Action

Last week, a motion to decertify a proposed Illinois Class was filed in a class action lawsuit alleging defective Whirlpool and Kenmore washing machines lead to mold problems.

The original Sears moldy washer class action lawsuit was filed over 10 years ago and alleged that some Kenmore front-loading washing machines manufactured by Whirlpool contained serious flaws that causes mold and the smell of mold coming from the machines would permeate their clothing and homes, making the machines unusable.

In July of this year, U.S. Magistrate Judge Mary M. Rowland ruled to certify the Class, reversing a decision made four years ago. Last week, Sears and Whirlpool filed a motion to decertify the Class, arguing the Class Members’ claims are too individualized to qualify for a class action lawsuit.

The defendants argue that the plaintiffs’ claim for breach of implied warranty under Illinois law is the only claim that can be certified; however, according to Sears and Whirlpool, the plaintiffs cannot establish that each Class Member gave pre-suit notice to Sears of their allegations within a reasonable amount of time after they found the alleged defect as required under the law.

“Fact and expert discovery deadlines have passed, yet plaintiffs have proposed no mechanism through which an essential liability element of their claim can be proven on a class-wide basis,” argued the defendants in their motion seeking decertification of the moldy washer class action lawsuit.

Additionally, the defendants claim the Class’s own expert who surveyed Kenmore-brand or Whirlpool-brand frontloading washer owners to see if they had problems with smell or mold in the washers found that three-quarters of the survey participants had not claimed to have experienced a problem with mold or odor. The defendants point out that the plaintiffs’ expert did not find out whether those consumers with problems had contacted Sears.

“Because plaintiffs have provided no mechanism or evidence — through experts or otherwise — to establish notice class-wide, individualized evidentiary determinations will be required for each class member to establish this element of liability,” argued Sears and Whirlpool in their motion.

Four years ago, Class certification was denied because, according to the judge, questions of law common to Class Members didn’t predominate over individualized claims. The Seventh Circuit reversed and found a single common issue of liability as to whether the Sears washing machine was defective.

The plaintiffs are represented by James J. Rosemergy of Carey Danis & Lowe, Steve Schwartz of Chimicles & Tikellis LLP and Jonathan D. Selbin of Lieff Cabraser Heimann & Bernstein LLP.

The Sears Moldy Washer Class Action Lawsuit is Joseph Leonard, et al. v. Sears Roebuck and Co., et al., Case No. 1:06-cv-07023, in the U.S. District Court for the Northern District of Illinois, Eastern Division.