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Kenmore Dryer Suit Hung Out to Dry

Failed class action may dampen attorneys' enthusiasm for consumer cases

By Jon Hood
ConsumerAffairs.com

February 4, 2009

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The Seventh Circuit Court of Appeals struck a blow to consumer class actions in an opinion reversing class certification for a lawsuit involving Kenmore clothes dryers.

The suit, filed on behalf of plaintiffs in 28 states and the District of Columbia, alleged that Sears deceived customers by imprinting the words “stainless steel” on the outside of the dryers even though part of the drum, located entirely inside the dryer, was made of ceramic-coated, rather than stainless, steel.

The lead plaintiff, Steven Thorogood of Tennessee, alleged that the non-stainless section of his drum rusted and stained his clothes.

In reversing the district court’s November 2007 order certifying the class, Judge Richard Posner gave an unusually broad and stinging rebuke of class action suits in general. Posner noted that the Tennessee Consumer Protection Act, under which the suit was brought, does not even allow for class action lawsuits.

Because the suit was filed on behalf of plaintiffs in a number of states, however, federal law controlled, permitting the class action to proceed. Nevertheless, Posner cited his concern that the plaintiffs were “seeking a breadth of relief that Tennessee does not offer them in its courts,” essentially using the procedural rules of multi-state class actions as a loophole to file a suit that would be barred if brought individually.

Elements lacking

Posner also asserted that the suit lacked the elements required for a successful class action.

For a class to be certified, there must be common issues of law or fact, meaning that the claims of every class member are essentially identical and can be resolved during a single trial. According to Posner, Thorogood’s case concerned “no common issues of law or fact.”

Specifically, Thorogood claimed that the dryer’s “stainless steel” label led him to believe that the drum was made entirely of stainless steel. However, according to Posner, for the class to be certified, every class member would have to share this belief, which is not only impossible to prove but also highly unlikely.

Posner noted that rust stains are not a common problem among dryer owners, and that few people buy stainless appliances to prevent such stains.

In fact, during oral argument, the plaintiff’s attorney clumsily requested that the bench “ask [their] wives whether they are concerned about rust stains in their dryers.” Posner reported back that, “None is.”

Moreover, Sears did not advertise the dryers as preventing rust stains, or even as having a 100 percent stainless steel drum. The only claimed deception was Sears’s labeling of the dryer as “stainless steel.”

The opinion’s effect on other federal consumer class actions remains to be seen, but could cause class action attorneys to think twice before filing in the Seventh Circuit. The requirement of common issues of law or fact, along with other complexities of class actions, make the suits notoriously difficult to litigate, and cases can stretch on for months or even years before motions for class certification are decided.

Moreover, the Class Action Fairness Act of 2005 makes it harder to file class actions in state court, which means that Posner’s opinion could have a chilling effect on other circuits.

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