From today's Wall Street Journal, an editorial, "Supreme Laundry List -- The Justices should hear a misguided class-action case."  

Trial lawyers have their eye on the Supreme Court this week as the Justices will decide whether to hear a case that could expand product liability and make it easier to bring class-action lawsuits. If a lower court ruling is allowed to stand, the result could be a tide of new litigation against an endless array of products.

In Whirlpool Corporation v. Glazer, the question is whether some 200,000 Ohio residents can be certified as a class to sue the company over front-loading washing machines that made some clothes smell moldy. Though many in the class had varying complaints or hadn't been inconvenienced by the smelly machines, the Sixth Circuit Court of Appeals allowed the class to go forward.

That decision contradicts the Supreme Court's recent guidance on class certification in 2011's gender discrimination case Wal-Mart v. Dukes. The Justices tossed out that case on grounds that the plaintiffs could not establish enough commonality among their complaints to be reasonably considered a class. Under the Sixth Circuit's ruling, consumers who had used more than 20 different kinds of washing machines may band together, even though many of the plaintiffs would have no grounds to sue on an individual basis.

Business Roundtable joined the National Chamber Litigation Center (affiliated with the U.S. Chamber of Commerce) and the National Association of Manufacturers in filing an amicus brief (here) supporting the Supreme Court's review of this egregious and economically destructive litigation. As we argue:

The Sixth Circuit’s approach reflects a misconception of law whereby the substantive claims advanced by a plaintiff class can be far greater than the sum of the class’s individual parts, thereby transforming Rule 23 from a procedural device to a novel (and worrisome) substantive charter. Its holding poses special threat to Dukes in the product-liability arena by subjecting manufacturers to product-liability class actions enlisting wide swathes of consumers who have suffered no injury that might occasion individual

suit. Such sprawling consumer class actions, aggregating legions of “plaintiffs” who have suffered no injury, would expose manufacturers to litigation and liability based on mere dissatisfaction in a small fraction of the product’s buyers. This specter is especially troubling given the frequency of consumer class-action filings and the relative inability of any manufacturer, no matter where it is located, to curtail its exposure to them.

Our friends at the American Tort Reform Association are also calling for certiorari. From ATRA's news release, "ATRA Urges Supreme Court to Hear Case with Huge Implications for U.S. Manufacturing Jobs, drawing on an op-ed column in The Washington Times by ATRA's Sherman "Tiger" Joyce:

“Beyond the urgent question of class certification, the 6th Circuit’s opinion being appealed also establishes a radical new theory of product liability,” Joyce’s piece continues. “In essence, it says that even if just one buyer of a manufactured product might one day become dissatisfied with the product, even if proper product maintenance would have prevented that dissatisfaction, and even if the product is otherwise widely and enthusiastically embraced in the marketplace, everyone who ever bought the product has, by definition, been overcharged and can be joined in a class action against the manufacturer. “Such a wild expansion of product liability law in the class-action context could make trial lawyers rich beyond their wildest dreams while bankrupting countless manufacturers and dooming those manufacturers’ employees to the nightmare of joblessness.”