As I have previously blogged, my colleagues and I have filed certiorari petitions in two significant cases affecting class-action litigation, Sears Roebuck & Co. v. Butler (pdf) and Whirlpool Corp. v. Glazer (pdf). The petitions challenge decisions that bless broad class actions on behalf of largely uninjured purchasers of front-loading washing machines whose product-defect claims depend on the particular model purchased, the purchaser's use and care of the machine, and numerous other purchaser-specific determinations.

Last week, in an unusually strong outpouring of support, twelve different organizations filed nine different amicus briefs asking the Supreme Court to grant review in these two cases. Among other compelling arguments, the amicus briefs made two interesting points that put these class actions in context.

First, most manufacturers and many retailers have established product-warranty programs that are effective alternatives to broad purchaser class actions. These warranty programs operate on an opt-in principle that targets those who actually have problems with the product. And these programs quickly resolve any problems with a product by providing repairs or replacements at little or no cost to the purchaser. An unwieldy class action on behalf of mostly uninjured purchasers is no improvement on—indeed, would significantly interfere with—these warranty programs.

Second, the principal alleged defect in the washing machine cases—moldy odors resulting from residue that supposedly builds up because the machines use less water and lower temperatures—is tied directly to government-mandated water and energy efficiency improvements. Beginning in 2004, Department of Energy regulations started requiring aggressive efficiency increases for washing machines. In turn, manufacturers undertook groundbreaking product-innovation efforts, including the development of front-loading machines. Those machines provide significant efficiency gains, are highly rated by third-party organizations, and are popular with customers. Yet front-loading washing machines have now become the center of massive class-action litigation against every manufacturer.

As these amici arguments illustrate, there are powerful practical and policy reasons that the Supreme Court should review the class certification rulings in the washing-machine cases.

For interested readers, here are copies of the amicus briefs:

Edited by Archis A. Parasharami and Kevin S. Ranlett

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