By: Irvin Jackson | Published: November 20th, 2012
An appeals court has cleared the way for a class action lawsuit to move forward against Sears over problems with Kenmore washing machines, alleging that design defects may cause the development of mold in the clothes washers.
On November 13, the U.S. Court of Appeals for the Seventh Circuit in Chicago overturned a lower court’s ruling that denied plaintiffs attempts to establish a Kenmore washer class action lawsuit against Sears, Roebuck and Co. The decision will allow the claim to go forward as a class action.
The class action seeks to cover consumers from six states who filed breach of warranty claims against the company, including those from California, Indiana, Illinois, Kentucky, Minnesota, and Texas.
According to allegations raised in the lawsuit, the Kenmore washing machines do not clean themselves properly, potentially resulting in mold growth. The affected washers were made by Whirlpool and sold by Sears under the Kenmore label.
There are about 200,000 Kenmore washers with the alleged mold problem sold each year, according to the appeal, and there have been many thousands of complaints involving bad odors reported by owners of the machines.
“Sears argues that most members of the plaintiff class did not experience a mold problem,” the appeals court stated in its opinion. “But if so that is an argument not for refusing to certify the class but for certifying it and then entering a judgment that will largely exonerate Sears – a course it should welcome, as all class members who did not opt out of the class action would be bound by the judgment.”
The court noted that every class member will have to prove they have an odor problem due to the washers in order to collect damages, but even those without a problem can still pursue breach of warranty claims in states that allow relief for “expected rather than for only realized harm” due to a product defect.