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From Products Liability Law Daily, July 28, 2015

Proposed settlement reached in front-loading washer class action against Sears and Whirlpool

By Pamela C. Maloney, J.D.

The parties to a class action lawsuit arising out of alleged design defects in the main electronic control board or central control unit (CCU) on Kenmore and Whirlpool front-loading washing machines submitted a proposed settlement agreement to the federal district court in Illinois. The agreement purports to settle, fully and finally, all of the CCU claims that have been or could have been brought in three class-action lawsuits against Sears Roebuck & Co. and in one pending putative class action against Whirlpool Corporation involving the California-only class. Both Sears and Whirlpool deny that any conduct on their part or any alleged defect in the washers manufactured by their companies caused any losses alleged by the class (In re Sears, Roebuck & Co. Front-Loading Washer Products Liability Litigation, July 27, 2015, Rowland, M.).

Background. The Kenmore action asserted both CCU and biofilm claims with respect to Whirlpool-manufactured front load washers sold by Sears under its Kenmore brand. The class members alleged claims for breach of express warranty, breach of implied warranty, and violation of the Magnuson Moss Warranty Act based on an alleged design defect in the washers’ CCU that resulted in performance problems, e.g., problems related to the washer’s display of F11, Fdl, or Fdu error codes or problems related to the CCU, the door lock assembly, the wire harness between the CCU and the Motor Control Unit (“MCU”), the wire harness between the CCU and door lock, or the MCU. The Illinois federal court had certified these claims for class treatment with respect to several single-state classes, and, after extensive appellate proceedings before the U.S. Court of Appeals for the Seventh Circuit (Butler v. Sears, Roebuck & Co., 727 F.3d 796 [see Products Liability Law Daily’s August 23, 2013 analysis]) and the U. S. Supreme Court (Sears, Roebuck & Co. v. Butler Docket No. 13-430 [see Products Liability Law Daily’s October 8, 2013 analysis]), that certification decision was upheld.

The Whirlpool action was originally filed in the United States District Court for the Central District of California and transferred at Whirlpool’s request into MDL No. 2001. As in the Kenmore action, the Whirlpool CCU action alleged claims on behalf of a California class against Whirlpool for breach of express warranty, breach of implied warranty, violation of the Magnuson Moss Warranty Act, and violation of the Song-Beverly Consumer Warranty Act based on an alleged design defect in the Whirlpool washers.

Settlement classes. The proposed settlement applies to two classes. First, the Kenmore Settlement Class which includes all persons who, while living in the United States, either (a) bought a new Kenmore washer from Sears or (b) received a new Kenmore washer as a gift from a donor meeting those requirements, provided the washer had not been used by the donor or by anyone else after the donor purchased the Washer and before the donor gifted the washer. The second class, the Whirlpool Settlement Class, was defined as all persons who, while in the State of California, either (a) bought a new Whirlpool washer or (b) received a Whirlpool washer as a gift, from a donor meeting those requirements, provided the washer had not been used by the donor or by anyone else after the donor purchased the Washer and before the donor gifted the washer.

General provisions. According to class counsel’s memorandum in support of the agreement, the settlement provides for the following benefits to the class:

  • A broad definition of CCU related performance problems covered by the Settlement;

  • A full recovery for paid qualifying repairs for performance problems that occurred within 3 years of the purchase of the affected washers;

  • Additional compensation for costs associated with multiple repairs and/or replacement due to performance problems in the affected washers;

  • A streamlined claims process for prequalified class members (i.e. settlement class members who can be identified in Whirlpool’s or Sears’s databases as having paid for a qualifying repair or as having paid for a qualifying service contract);

  • No limitation on the total amount paid by Sears or Whirlpool to eligible class members; and

  • The payment by Sears and Whirlpool of all notice and administration costs and payments to class counsel for attorneys’ fees and reimbursement of litigation expenses above and beyond any payments to be made to eligible class members.

Specifically, the settlement provides that qualifying class members would be reimbursed for any documented out-of-pocket costs incurred for a qualifying repair performed by a service technician or the owner within three years after purchase. Those class members who chose to replace rather than repair their washers will be reimbursed for the amount of the replacement washer up to a maximum of $300. In addition, those class members who can prove that the CCU had been replaced by a service technician on at least three occasions within four years after purchase, could choose to receive as compensation the greater of either (1) reimbursement of the purchase price, or (2) reimbursement payments for the first, second, and third paid repairs.

The settlement also proposes the payment by Whirlpool of a service award in the amount of $4,000 to each of the named plaintiffs in the Whirlpool class action.

The case is No. 06-CV-7023

Attorneys: Paul M. Weiss (Quantum Legal LLC) for Larry Butler. Bradley B. Falkof (Barnes & Thornburg) for Sears Roebuck & Co.

Companies: Sears Roebuck & Co.; Whirlpool Corp.

MainStory: TopStory HouseholdProductsNews ClassActLitigationNews IllinoisNews

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