“The Supreme Court gave consumers a victory on Monday…”

by Walter Olson on February 25, 2014

“…by allowing them to proceed with class-action lawsuits alleging that millions of front-loading washing machines they bought suffered from mold or musty odors.” Thus Reuters’ Lawrence Hurley and Jonathan Stempel. Can you spot the two buried assumptions here? One is that moving forward with a class action on behalf of the many millions who bought washers, rather than a narrower class action of those who actually reported problems with their washers, constitutes a “victory” for consumers. That is to presuppose one of the points in dispute, since the defendants argued that consumers as a group would be ill-served that way. (Nor did the Supreme Court resolve the question either way, since it turned away the cases without explanation.) The second buried assumption is that the “consumers” themselves, most of whom have never shown any interest in participating, were the ones who were going to be proceeding. In reality, of course, the ones moving forward, and the ones who won a victory yesterday, were lawyers.

Although organized business worked hard to win Supreme Court review for the cases, and was duly disappointed by yesterday’s denial, the impact on the Supreme Court’s rapidly evolving class action jurisprudence is uncertain at best and perhaps negligible. So many other class actions raise likely issues of typicality, representativeness, or unity of interest among represented classes that the Court is sure to have the chance to visit the area before long, if it wishes, in other cases bubbling up from the lower courts; of the variety of fact patterns these new cases will present, some may be more compelling for the defense side.

More on the mandatory-conservation element of the washing machine saga here.