Pleading Setback Stalls N.J. Moldy Washing Machine Class Action, Which Will Face Uncertainty in Light of Comcast
A New Jersey moldy washing machine class action suffered a big pleading setback after the District of New Jersey held that the lengthy complaint still contained insufficient detail to place the defendant on notice of the precise misconduct alleged. But even if plaintiffs replead their case, their ultimate goal of class certification may be stymied in light of the Supreme Court’s decision in Comcast Corp. v. Behrend, and its collateral effect upon other defective washing machine putative class actions.
In Fishman v. General Electric Company, plaintiffs filed a 39-page amended complaint that contained 152 paragraphs, based upon alleged design defects in the “drums,” “doors,” and “door seals” of their “front-loading washer machines.” The defect, according to plaintiffs, caused mold and mildew to accumulate in their machines, which, in turn, produced a foul and noxious odor. Plaintiffs brought suit against General Electric asserting causes of action for violations of consumer fraud statutes, breach of express and implied warranty, and unjust enrichment. Thereafter, General Electric moved to dismiss plaintiffs’ amended complaint arguing, inter alia, that plaintiffs’ allegations were legally deficient.
The Court agreed and concluded that plaintiffs’ amended complaint was “woefully” inadequate. First, plaintiffs did not identify which products were involved, the dates the plaintiffs discovered the alleged defect in their washing machines, and what express representations, if any, General Electric made. Put simply, “plaintiffs failed to provide basic information about key aspects of their claims.” Second, plaintiffs’ amended complaint was devoid of any description of, or reference to, plaintiffs’ warranties. And finally, plaintiffs’ claims for unjust enrichment could not be sustained because “plaintiffs purchased the goods in question from a third-party,” i.e., not General Electric.
The Fishman case is on track to mirror defective washing machine litigations in Butler v. Sears, Roebuck & Co. and Glazer v. Whirlpool, where the Supreme Court vacated decisions from the Sixth and Seventh Circuits that allowed defective washing machine cases to proceed as class actions, and directed the Courts of Appeals to reconsider their opinions in light of its Comcast decision. In Comcast, the Supreme Court rejected a decision upholding class certification faulting the District Court and Court of Appeals for not determining whether plaintiffs’ damages calculation was “susceptible of measurement across the entire class.” The Supreme Court, thus, concluded that the District Court and Court of Appeals failed to conduct a “rigorous analysis” rendering “Rule 23(b)(3)’s predominance requirement to a nullity.” The Supreme Court’s vacatur of class certification orders in Butler and Glazer emphasizes that the predominance requirement is indeed demanding, and suggests a much wider impact for the Court’s Comcast decision.
Accordingly, even if plaintiffs in Fishman are able to plead a viable cause of action, this litigation may face the same certification hurdles as Butler and Glazer. Stay tuned …