united states district court northern district ofohio

UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF OHIO

EASTERN DIVISION

In re: WHIRLPOOL CORP. FRONT-LOADING WASHER PRODUCTS LIABILITY LITIGATION

1:08-wp-65000

MDL No. 2001

Class action

Judge: James S. Gwin

DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSESTO THIRD AMENDED MASTER CLASS ACTION COMPLAINT

Defendant Whirlpool Corporation (“Whirlpool”) hereby answers Plaintiffs’ Third

Amended Master Class Action Complaint (the “Complaint”). Except as specifically and expressly

admitted, each and every allegation in the Complaint is hereby denied.

ANSWER

1. Whirlpool admits that Plaintiffs purport to bring this action on behalf of

themselves and as a putative class action against Whirlpool for damages and injunctive relief.

Whirlpool denies the propriety of any class proposed by Plaintiffs, and denies that Plaintiffs are

entitled to damages or injunctive relief. Whirlpool denies the remaining allegations in

Paragraph 1, if any.

2. Whirlpool admits that it manufactures, distributes, and sells to its trade

customers, for re-sale to consumers, Whirlpool Duet® and Duet HT® front-loading washing

machines (“Duet washers”) and Duet Sport® front-loading washing machines (“Duet Sport

Case: 1:08-wp-65000-JG Doc #: 83 Filed: 12/02/09 1 of 50. PageID #: 1786

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washers”) (collectively, the “Subject Washers”). Whirlpool denies the remaining allegations in

Paragraph 2.

3. Paragraph 3 of the Complaint states legal conclusions to which no response

is required. To the extent the allegations require a response, Whirlpool denies the allegations.

THE PARTIES

4. Whirlpool admits the allegations in Paragraph 4.


















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21. The allegations in Paragraph 21 concerning the adequacy of Plaintiffs’ pre-

suit notice contain legal conclusions to which no response is required. To the extent these

allegations require a response, Whirlpool denies the allegations. Whirlpool is without knowledge

or information sufficient to form a belief as to the truth of the remaining allegations in Paragraph

21 and therefore denies those allegations.

WHIRLPOOL


JURISDICTION AND VENUE

23. Whirlpool admits that this Court has jurisdiction over this action. Whirlpool

denies the remaining allegations in Paragraph 23, if any.

24. Whirlpool admits that venue is proper in this District with respect to the

underlying Glazer v. Whirlpool action pursuant to 28 U.S.C. § 1391, and with respect to the

remaining actions pursuant to the transfer order of the Judicial Panel on Multidistrict Litigation.

Whirlpool admits that it markets, advertises, distributes and sells to its trade customers, for re-sale

to consumers, products in Ohio, this district, and nationwide. Whirlpool is without knowledge or

information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 24

and therefore denies those allegations

25. Whirlpool admits the allegations in Paragraph 25. Whirlpool also reserves

its right to seek remand for trial of all actions transferred by the Judicial Panel on Multidistrict

Litigation.


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FACTUAL BACKGROUND

Alleged Facts Common to the Class

26. Whirlpool admits that it manufactures, produces, markets, distributes, and

sells to its trade customers, for re-sale to consumers, home appliances, including washing

machines, throughout the United States. Whirlpool denies the remaining allegations in Paragraph

26.

27. Whirlpool admits that it has manufactured, produced, and distributed to its

trade customers, for re-sale to consumers, Subject Washers. Whirlpool admits that such trade

customers include Lowe’s, Sears, Best Buy, PC Richard and Son, and other retailers. Whirlpool

denies the remaining allegations in Paragraph 27, if any.

28. Whirlpool admits that it provides a limited written warranty with each new

Subject Washer it sells, but denies any implication that the precise terms of such warranties were

uniform throughout the putative class period. Whirlpool states that the limited warranties referred

to in Paragraph 28 are written documents that speak for themselves, and Whirlpool denies any

characterization that is inconsistent with those documents. Whirlpool denies the remaining

allegations in Paragraph 28.

29. Whirlpool admits that it provided a limited lifetime warranty on the stainless

steel drums for some Duet washers. Whirlpool states that the limited warranties referred to in

Paragraph 29 are written documents that speak for themselves, and Whirlpool denies any

characterization that is inconsistent with those documents. Whirlpool denies the remaining


30. Whirlpool denies the allegations in Paragraph 30.


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31. Whirlpool denies that Paragraph 31 identifies any express representation by

Whirlpool, and on that basis, denies the allegation contained in the first sentence. Whirlpool

admits that Subject Washers are labeled as Energy Star compliant and as High Efficiency washers.

Whirlpool admits the third sentence in Paragraph 31. Whirlpool denies the remaining allegations,

if any, in Paragraph 31.

32. Whirlpool admits that Paragraph 32 purports to quote portions of certain

websites discussing the Energy Star program. The websites speaks for themselves, and Whirlpool

denies any characterization of those websites that is inconsistent with those documents.

33. Whirlpool is without knowledge or information sufficient to form a belief as

to the truth of the allegations in the first sentence of Paragraph 33 concerning what the Energy

Star certification indicates to any particular consumer. Whirlpool admits that Paragraph 33

purports to quote a portion of a website discussing the Energy Star program. The website speaks

for itself, and Whirlpool denies any characterization of the website that is inconsistent with that

document.

34. Whirlpool admits that all of the Subject Washers are Energy Star compliant,

but Whirlpool’s use of the Energy Star logo has varied by washer model and model year.

Whirlpool denies the remaining allegations in Paragraph 34.

35. Whirlpool admits that some consumers who purchased Subject Washers did

so, in part, because the machines are high efficiency appliances that use less water and less energy

than conventional washing machines. Whirlpool admits that some consumers who bought Subject

Washers also did so, in part, because the machines are Energy Star compliant. Whirlpool further

admits that some owners of Subject Washers have run maintenance cycles or “Clean Washer”


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cycles with bleach or a washing machine cleaning product. Whirlpool denies the remaining



37. Whirlpool admits that Subject Washers are Energy Star compliant.



39. Whirlpool admits that it provides Use & Care Guides to purchasers of

Subject Washers. Whirlpool denies the remaining allegations in Paragraph 39.

40. Whirlpool states that the Use & Care Guides referred to in Paragraph 40 are

written documents that speak for themselves, and Whirlpool denies any characterization that is

inconsistent with those documents. Whirlpool admits that many of its Use & Care Guides advise

consumers on how to prevent mold and mildew from forming in their washing machines, and also

discloses to consumers that misuse or improper treatment of their washers may lead to the

development of mold and mildew and odors. Whirlpool denies that leaving the washer door open

in between uses poses a safety risk to children or pets. Whirlpool is without knowledge or

information sufficient to form a belief as to the truth of the allegations in Paragraph 40 that a child

recently drowned in a front-loading washing machine. Whirlpool is without knowledge or

information sufficient to form a belief as to the truth of the allegations in Paragraph 40 that

Plaintiffs have followed the instructions contained in the Use and Care Guides that were provided

with their Subject Washers, or that Plaintiffs have and continue to experience mold, mildew or

associated odors in their machines, and therefore denies those allegations. Whirlpool denies the

remaining allegations in Paragraph 40.


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41. Whirlpool admits that Subject Washers have dispenser drawers with separate

compartments for HE detergent, fabric softeners, and bleach. Whirlpool denies the remaining



to the truth of the allegations in Paragraph 42, and therefore denies those allegations.

43. Whirlpool denies that the fist sentence of Paragraph 43 identifies any

“statements and representations” by Whirlpool, and on that basis denies the allegations.










52. Whirlpool admits that there are websites where consumers post complaints

about appliances, including Subject Washers. Whirlpool denies that those consumer postings

mirror the allegations in the Complaint. Whirlpool denies the remaining allegations in Paragraph

52, if any.

53. Whirlpool admits that there are a number of products available that are

designed to clean washing machines. Whirlpool denies the remaining allegations in Paragraph 53.


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54. Whirlpool admits that it has developed a product known as AffreshTM

Washer Cleaner (“Affresh”) that is designed to help remove residues that can accumulate in high

efficiency washing machines. Whirlpool states that the statements on the Affresh website and on

the Affresh packaging referred to in Paragraph 46 are written statements that speak for

themselves, and Whirlpool denies any characterization that is inconsistent with those statements.

Whirlpool is without knowledge or information sufficient to form a belief as to the truth of the

allegations in Paragraph 46 concerning Plaintiffs’ alleged use of Affresh and therefore denies

those allegations. Whirlpool denies the remaining allegations in Paragraph 54.

55. Whirlpool admits that it has developed AffreshTM Washer Cleaner Kit, which

includes Power PuckTM tablets and Grit GrabberTM cloth. Whirlpool states that the statements on

the Affresh website referred to in Paragraph 55 are written statements that speak for themselves,

and Whirlpool denies any characterization that is inconsistent with those statements. Whirlpool

denies the remaining allegations in Paragraph 55.



58. Whirlpool states that the statements on the Affresh website referred to in

Paragraph 50 are written statements that speak for themselves, and Whirlpool denies any

characterization that is inconsistent with those statements. Whirlpool denies the remaining


59. Whirlpool denies the allegations in Paragraph 59, including the allegations in

all subparagraphs.


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60. Whirlpool denies the allegations in Paragraph 60, including the allegations in

all subparagraphs.


62. Paragraph 62 contains legal conclusions to which no response is required.

To the extent these allegations require a response, Whirlpool denies them.


To the extent these allegations require a response, Whirlpool denies that the filing and service of

the Complaint satisfies the applicable notice requirements. Whirlpool denies the remaining

allegations in Paragraph 63, if any.

Plaintiff Gina Glazer’s Experiences with Her Washing Machine

64. Whirlpool admits the first sentence in Paragraph 64. Whirlpool admits that,

on January 9, 2008, Plaintiff Gina Glazer contacted Whirlpool via Whirlpool’s Internet website

and commented that her washing machine “is giving off a terrible smell when I do a load of

wash.” Whirlpool admits that, on January 10, 2008, Whirlpool’s CXC responded to Plaintiff’s

complaint and made a number of suggestions for addressing the odor problem she was

experiencing. Whirlpool also admits that, on May 21, 2008, Plaintiff contacted Whirlpool again

by e-mail, stating as follows:

I have tried these suggestions for the last several months. They worked a little however I still have mold issues in the rubber and standing water that is not draining. This machine is not that old and I was wondering if you might have another suggestion?

Whirlpool further admits that, on May 22, 2008, one of its customer service representatives spoke

with Plaintiff by telephone regarding her options for resolving her concern, and Plaintiff stated


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that she would call Whirlpool back with the date of purchase of her Duet Sport washer to see

whether there was any warranty assistance that Whirlpool could offer. Whirlpool admits that it

has no record indicating that Plaintiff ever contacted Whirlpool or a Whirlpool-authorized service

provider to schedule in-home service to diagnose the source of Plaintiff’s problem with the

machine. Whirlpool also admits that Plaintiff never contacted Whirlpool to request a free repair, a

full or partial reimbursement of her purchase price, a free replacement washing machine, or any

other customer-satisfaction resolution. As to any remaining allegation in Paragraph 64, Whirlpool

is without knowledge or information sufficient to form a belief as to the truth of that allegation

and therefore denies each such allegation.

Plaintiff Trina Allison’s Experiences with Her Washing Machine

65. Whirlpool admits that Plaintiff Allison bought a Whirlpool Duet washer for

$1029.00 and an extended warranty for $84.99 from hhgregg in Grove City, Ohio on October 13,

2005. Whirlpool is without knowledge or information sufficient to form a belief as to the truth of

the remaining allegations in Paragraph 65 and therefore denies those allegations.

Plaintiff Jeff Glennon’s Experiences with His Washing Machine

66. Whirlpool admits that Plaintiff Glennon bought a Duet washer for $838.97

from P.C. Richard & Son in Greenvale, New York, on August 16, 2006, and took delivery on

August 21, 2006. Whirlpool is without knowledge or information sufficient to form a belief as to

the truth of the remaining allegations in Paragraph 66 and therefore denies those allegations.

67. Whirlpool admits that Plaintiff Glennon sent Whirlpool an e-mail through the

Whirlpool website on November 27, 2007, complaining of a mildew odor in his washing machine.

Whirlpool admits that, in response, a representative from Whirlpool’s Customer Experience


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Center (“CXC”) sent Plaintiff Glennon an e-mail on or about September 27, 2007, providing

several suggestions to help eliminate washer odor, including running an empty wash cycle with

hot water and bleach and wiping out the door seal/boot area, and recommended that Plaintiff

Glennon should contact A&E Factory Service, or Whirlpool’s CXC, if he would like to schedule

a service appointment. Whirlpool is without knowledge or information sufficient to form a belief

as to the truth of the remaining allegations in Paragraph 67 and therefore denies those allegations.

68. Whirlpool admits that P.C. Richard & Son provided a store exchange to

Plaintiff Glennon on November 20, 2007. Whirlpool admits that, on November 26, 2007, P.C.

Richard & Son removed Plaintiff’s Duet washer from his house and delivered a new Duet washer.


remaining allegations in Paragraph 68 and therefore denies those allegations.

69. Whirlpool admits that Plaintiff Glennon sent Whirlpool an e-mail, stating that

“the smell and black moldy stains have appeared in the new unit.” Whirlpool admits that a CXC

representative responded to Plaintiff Glennon’s e-mail on March 12, 2008, and provided several

suggestions to help eliminate washer odor, including leaving the door open when not using the

machine, using hot water settings from time to time, and trying to clean his washing machine with

Affresh. Whirlpool also admits that Plaintiff Glennon arranged for a service appointment with

A&E Factory Service on March 10, 2008. Whirlpool is without knowledge or information

sufficient to form a belief as to the truth of the remaining allegations in Paragraph 69 and

therefore denies those allegations.

Plaintiff Mara Cohen’s Experiences with Her Washing Machine


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70. Whirlpool admits that, on or about February 16, 2006, Plaintiff Cohen

bought a Duet washer from Berger Appliance in Hawthorne, New York. Whirlpool also admits

that Plaintiff Cohen paid approximately $925.00 for the Duet washer, not including sales taxes

and any delivery or other fees that may have been charged by Berger Appliance.

71. Whirlpool denies that Plaintiff Cohen has complied with all instructions and

recommendations that accompanied her Duet washer. Whirlpool is without knowledge or


and therefore denies those allegations.

72. Whirlpool admits that it mailed to Plaintiff Cohen a letter recommending that

she use Affresh tablets to clean and maintain her washing machine. Whirlpool is without

knowledge or information sufficient to form a belief as to the truth of the remaining allegations in

Paragraph 72 and therefore denies those allegations.

Plaintiff Karen Hollander’s Experiences with Her Washing Machine

73. Whirlpool admits that Plaintiff Hollander bought a Duet washer from

BrandsMart U.S.A., on or about January 11, 2006. Whirlpool further admits that Plaintiff

Hollander purchased a one-year extended warranty. Whirlpool is without knowledge or




to the truth of the allegations in Paragraph 74 and therefore denies those allegations.




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Plaintiff Jane Werman’s Experiences with Her Machine

77. Whirlpool admits that Plaintiff Werman purchased a Duet washer.





Plaintiff Sonja Sandholm-Pound’s Experiences with Her Washing Machine

80. Whirlpool admits that Plaintiff Sandholm-Pound purchased her first Duet

washer in New Jersey, but denies that she purchased that machine on or about May 2003.

Whirlpool admits that Plaintiff Sandholm-Pound purchased her second Duet washer on or about

May 2005, in New Jersey. Whirlpool is without knowledge or information sufficient to form a

belief as to the truth of the allegations in the third and fourth sentences of Paragraph 80 and

therefore denies those allegations. Whirlpool admits that Plaintiff Sandholm-Pound contacted

Whirlpool to arrange for service on her second machine on at least two occasions. Whirlpool

denies that the repair person replaced the gasket around the door of the second machine each time

service was requested.



Plaintiff Shannon Schaeffer’s Experiences with Her Machine



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85. Whirlpool admits that Plaintiff Schaeffer removed the front panel of the

machine and accessed a part she refers to as the “plastic trap cover.” Whirlpool further admits

that Plaintiff Schaeffer cleaned the reservoir with bleach and reassembled the part she refers to as

the “trap and cover.” Whirlpool is without knowledge or information sufficient to form a belief as

to the truth of the remaining allegations in Paragraph 85 and therefore denies those allegations.

86. Whirlpool admits that Plaintiff Schaeffer contacted Whirlpool’s CXC by

telephone in January 2009 and complained that she was experiencing a moldy odor in her washing

machine. Whirlpool further admits that a CXC customer service representative asked Plaintiff

Scaheffer whether she was leaving her washer door open between uses, and Plaintiff Schaeffer

stated that she had started doing so six months ago. Whirlpool also admits that the CXC

representative advised Plaintiff Schaeffer to leave the door open between uses and that she could

try Affresh. Whirlpool is without knowledge or information sufficient to form a belief as to the

truth of the remaining allegations in Paragraph 86 and therefore denies those allegations.


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Plaintiff Paula Call’s Experiences with Her Washing Machine

87. Whirlpool admits the allegations in Plaintiff Call bought a new Duet washer

in November 2004 for $949.99. Whirlpool is without knowledge or information sufficient to

form a belief as to the truth of the remaining allegations in Paragraph 87 and therefore denies

those allegations.




Plaintiff Bonnie Beierschmitt’s Experiences with Her Washing Machine

91. Whirlpool admits that Plaintiff Beierschmitt purchased a Duet washer from a

Lowe’s store in New Jersey, on or about January 4, 2005. Whirlpool further admits that Plaintiff

Beierschmitt purchased a four-year extended warranty from Lowe’s. Whirlpool is without



Plaintiff Phil Torf’s Experiences with His Washing Machine

92. Whirlpool admits that Plaintiff Torf purchased a Duet washer in Glenview,

Illinois, on or about August 22, 2005. Whirlpool further admits that Plaintiff Torf purchased a

four-year extended warranty. Whirlpool denies Plaintiff Torf contacted Whirlpool. Whirlpool is

without knowledge or information sufficient to form a belief as to the truth of the allegations in



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Plaintiff Sylvia Bicknell’s Experiences with Her Washing Machine

93. Whirlpool admits that Plaintiff Bicknell purchased a Duet washer in Florida,

on or about January 25, 2006. Whirlpool admits that Plaintiff Bicknell purchased a five-year

extended warranty from Setzer’s Appliances. Whirlpool is without knowledge or information



Plaintiff Rebecca Nordan’s Experiences with Her Washing Machine

94. Whirlpool admits that Plaintiff Nordan purchased a Duet washer from ABC

Appliance Sales & Services, Inc., in Edgewater, Maryland, for $989.95, on or about April 21,

2005. Whirlpool is without knowledge or information sufficient to form a belief as to the truth of

the remaining allegations in Paragraph 94 and therefore denies those allegations.

95. Whirlpool denies that Plaintiff Nordan contacted Whirlpool or a Whirlpool-

authorized service provider in 2005. Whirlpool is without knowledge or information sufficient to

form a belief as to the truth of the remaining allegations in Paragraph 95 and therefore denies

those allegations.

96. Whirlpool denies that Plaintiff Nordan contacted Whirlpool or a Whirlpool-

authorized service provider in 2007 or March 2008. Whirlpool is without knowledge or



97. Whirlpool admits that Plaintiff Nordan purchased a two-year extended

warranty. Whirlpool is without knowledge or information sufficient to form a belief as to the

truth of the remaining allegations in Paragraph 97 and therefore denies those allegations.


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Plaintiff Maggie O’Brien’s Experiences with Her Washing Machine

98. Whirlpool admits that Plaintiff O’Brien purchased a Duet washer from

Rouch’s TV & Appliance, Inc., in Valparaiso, Indiana, on or about February 11, 2005. Whirlpool

is without knowledge or information sufficient to form a belief as to the truth of the remaining

allegations in Paragraph 98 and therefore denies those allegations.

99. Whirlpool admits that, on January 3, 2006, Plaintiff O’Brien contacted

Whirlpool via Whirlpool’s Internet website and stated that she owns “a Duet washer and have

continual issues with mold in the rubber interior band and the detergent drawer area.” Whirlpool

admits that, on January 4, 2006, a representative from Whirlpool’s CXC responded to Plaintiff

O’Brien and requested that Plaintiff O’Brien contact Whirlpool by telephone. Whirlpool further

admits that on or about January 13, 2006, Diamond Factory Service installed a new bellows in

Plaintiff O’Brien’s machine, ran a test cycle in Plaintiff O’Brien’s machine and advised Plaintiff

O’Brien on how to clean her washing machine and to leave the door open between uses.





101. Whirlpool admits that on September 17, 2007, Plaintiff O’Brien contacted

Whirlpool via Whirlpool’s Internet website and stated that:

I have been using the directions emailed to me last February regarding the mold issue with my duet. It is still a problem. I regularly use bleach and continually have to waste time running an empty load (and then another empty load following that because bleach residue discolors clothing if I don’t) full of bleach to combat


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the problem. I follow your directions, I use HE detergent only and I leave the door open to air it out. Please tell me what else I can do!

Whirlpool further admits that, on September 20, 2007, a representative from Whirlpool’s CXC

responded to Plaintiff O’Brien and recommended that Plaintiff O’Brien try cleaning her washing

machine with Affresh and that Plaintiff O’Brien should contact A&E Factory Service, or

Whirlpool’s CXC, if she would like to schedule a service appointment. Whirlpool denies that

Plaintiff O’Brien ever tried using Affresh in her washing machine. Whirlpool is without




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Plaintiff Andrea Strong’s Experiences with Her Washing Machine

102. Whirlpool admits that Plaintiff Strong bought a Duet washer from Spencer’s

TV & Appliance on November 19, 2004. Whirlpool is without knowledge or information




to the truth of the remaining allegations in Paragraph 103 and therefore denies those allegations.

Plaintiff Pramila Gardner’s Experiences with Her Washing Machine

104. Whirlpool admits the allegations in the first two sentences of Paragraph 97.


allegations in the third sentence of Paragraph 104 and therefore denies those allegations.



Plaintiff Tracie Snyder’s Experiences with Her Washing Machine

106. Whirlpool admits that, on or about June 4, 2005, Plaintiff Snyder purchased

a Duet washer from Plaza Appliance Mart in Concord, North Carolina for approximately

$1,200.00, and took delivery of the Washing Machine on June 6, 2005. Whirlpool further admits

that Plaintiff Snyder purchased a four-year extended warranty.




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108. Whirlpool denies that Plaintiff Snyder contacted Whirlpool in June 2008.





TOLLING

110. Paragraph 110 of the Complaint states legal conclusions to which no

response is required. To the extent the allegations require a response, Whirlpool denies the

allegations.



allegations.



allegations.

CLASS ACTION ALLEGATIONS

113. Whirlpool admits that Plaintiffs purport to bring this action as a class action

pursuant to Federal Rule of Civil Procedure 23. Whirlpool denies that Plaintiffs’ action is

properly maintainable as a class action. Whirlpool denies that Plaintiffs satisfy the requirements of

Rule 23(a), 23(b)(2), and 23(b)(3).

114. Whirlpool admits that Plaintiffs purport to bring this action on behalf of

themselves and as a class action on behalf of the persons specified in Paragraph 114. Whirlpool


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denies the propriety of the classes proposed for formation by Plaintiffs. Whirlpool admits that

Plaintiffs purport to exclude various individuals from the purported classes.

115. Numerosity/Impracticability of Joinder. Paragraph 115 contains legal

conclusions to which no response is required. To the extent these allegations require a response,

Whirlpool admits that some purchasers and owners of Subject Washers can be identified from

Whirlpool’s business records. Whirlpool denies the remaining allegations in Paragraph 115.

116. Commonality and Predominance. Paragraph 116 contains legal

conclusions to which no response is required. To the extent these allegations require a response,

Whirlpool denies there is any question of fact or law common to all members of the putative

classes, or that any common questions of law and predominate over questions involving individual

members of the putative classes. Whirlpool denies the remaining allegations in Paragraph 116,

including the allegations in all subparagraphs.

117. Typicality. Paragraph 117 contains legal conclusions to which no response

is required. To the extent these allegations require a response, Whirlpool denies that Plaintiffs’

claims are typical of the claims of Plaintiffs’ purported classes. Whirlpool denies the remaining


118. Adequacy. Paragraph 118 contains legal conclusions to which no response

is required. To the extent these allegations require a response, Whirlpool denies the allegations in

Paragraph 118.

119. Superiority. Paragraph 119 contains legal conclusions to which no

response is required. To the extent these allegations require a response, Whirlpool denies the



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120. Whirlpool admits the allegations in Paragraph 120 only insofar as they state

what Plaintiffs “anticipate.”

121. Whirlpool admits that address information for some purchasers and owners

of Subject Washers can be identified from Whirlpool’s business records. Whirlpool denies the

allegation in Paragraph 121 to the extent they imply that Whirlpool has address information for all

purchasers and owners of Subject Washers.

FIRST CAUSE OF ACTIONAsserted on Behalf of the Ohio Class

(Violation of the Ohio Consumer Sales Practices Act (“CSPA”))

122. Whirlpool answers Paragraph 122 by referring to, and incorporating herein

by reference, its answers to Paragraphs 1 through 121 above.

123. Whirlpool admits that Plaintiffs Glazer and Allison purport to bring this

cause of action on behalf of themselves and as a class action on behalf of Ohio consumers.

Whirlpool denies the propriety of any class proposed by Plaintiffs and denies the remaining


124. Whirlpool denies that its alleged conduct “falls within the scope of the

CSPA,” as alleged in Paragraph 124. The remaining allegations in Paragraph 124 contain legal

conclusions to which no response is required. To the extent the remaining allegations require a

response, Whirlpool denies the allegations.


To the extent these allegations require a response, Whirlpool denies the allegations.



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127. Whirlpool denies that it has “acted in the face of prior notice that its conduct

was deceptive, unfair, or unconscionable.” The remaining allegations in Paragraph 127 contain

legal conclusions to which no response is required. To the extent the remaining allegations

require a response, Whirlpool denies the allegations.


SECOND CAUSE OF ACTIONAsserted on Behalf of the Ohio Class

(Tortious Breach of Warranty)








To the extent these allegations require a response, Whirlpool denies them. Whirlpool states that it

properly and effectively disclaimed all implied warranties in the Whirlpool Corporation Major

Appliance Warranty that accompanied Plaintiffs’ Subject Washers.





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THIRD CAUSE OF ACTIONAsserted on Behalf of the Ohio Class

(Negligent Design and Failure to Warn)











To the extent the allegations require a response, denies the allegations in Paragraph 140.


To the extent the allegations require a response, denies the allegations in Paragraph 141.




145. Whirlpool denies the allegations in Paragraph 145 that pertain to Plaintiffs

Glazer and Allison. Whirlpool is without knowledge or information sufficient to form a belief as

to the truth of the allegations in Paragraph 145 concerning the putative class members and



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FOURTH CAUSE OF ACTIONAsserted on Behalf of Non-Ohio Classes

(Violations of Magnuson-Moss Act (15 U.S.C. §§ 2301-2312) -Written Warranty)




To the extent these allegations require a response, Whirlpool admits that Subject Washers are

“consumer products” as that term is defined by 15 U.S.C. § 2301(1).


To the extent these allegations require a response, Whirlpool admits that Plaintiffs are

“consumers” as that term is defined by 15 U.S.C. § 2301(3). Whirlpool denies the remaining



To the extent these allegations require a response, Whirlpool admits that it is a “warrantor” and

“supplier” as those terms are defined by 15 U.S.C. § 2301(4) and (5).


To the extent these allegations require a response, Whirlpool admits that the limited warranties it

provides with each new Subject Washer are “written warranties” as that term is defined by 15

U.S.C. § 2301(6). Whirlpool denies the remaining allegations in Paragraph 150.




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FIFTH CAUSE OF ACTIONAsserted on Behalf of All Classes Other Than Ohio,

Arizona, California, Florida, New York, and North Carolina(Violations of Magnuson-Moss Act (15 U.S.C. §§ 2301-2312) -

Implied Warranty)




To the extent these allegations require a response, Whirlpool admits that Subject Washers are

“consumer products” as that term is defined by 15 U.S.C. § 2301(1).


To the extent these allegations require a response, Whirlpool admits that Plaintiffs are

“consumers” as that term is defined by 15 U.S.C. § 2301(3). Whirlpool denies the remaining



To the extent these allegations require a response, Whirlpool admits that it is a “warrantor” and

“supplier” as those terms are defined by 15 U.S.C. § 2301(4) and (5).




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To the extent these allegations require a response, Whirlpool denies the allegations. Whirlpool

states that it properly and effectively disclaimed all implied warranties in the Whirlpool

Corporation Major Appliance Warranty that accompanied Plaintiffs’ Subject Washers.









SIXTH CAUSE OF ACTIONAsserted on Behalf of All Non-Ohio Classes

(Breach of Express Warranty)



167. Whirlpool admits that Plaintiffs purport to bring this cause of action on

behalf of themselves and as a class action on behalf of all non-Ohio proposed classes. Whirlpool

denies the propriety of any class proposed by Plaintiffs and denies the remaining allegations in





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SEVENTH CAUSE OF ACTIONAsserted on Behalf All Classes Other Than Ohio

Arizona, California, Florida, New York, and North Carolina(Breach of Implied Warranty of Merchantability)



180. Whirlpool admits that Plaintiffs purport to bring this cause of action on

behalf of themselves and as a class action on behalf of all of their proposed classes. Whirlpool








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To the extent these allegations require a response, Whirlpool denies them. Whirlpool states that it

properly and effectively disclaimed all implied warranties in the Whirlpool Corporation Major

Appliance Warranty that accompanied Plaintiffs’ Subject Washers.




EIGHTH CAUSE OF ACTIONAsserted on Behalf of All Classes Except Ohio and New Jersey

(Unjust Enrichment)



190. Whirlpool denies that this cause of action can be maintained on behalf of any

purported class in the manner suggested in Paragraph 190. Whirlpool denies the remaining






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194. Whirlpool denies that Plaintiffs and members of the putative classes are

entitled to the order and relief they request in Paragraph 194.

NINTH CAUSE OF ACTIONAsserted on Behalf of the California Class

The Song-Beverly Act - Breach of Express Warranty(Violations of Civil Code §§ 1790 et seq.)



196. Whirlpool admits that Plaintiffs Schaeffer and Call purport to bring this

cause of action on behalf of themselves and as a class action on behalf of California consumers.





199. Whirlpool admits that it provided a limited lifetime warranty on the stainless

steel drums for some Whirlpool® Duet® and Duet HT® washing machines. Whirlpool denies the

remaining allegations in Paragraph 199.






to the truth of the allegations in Paragraph 203 and therefore denies the allegations.


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TENTH CAUSE OF ACTIONAsserted on Behalf of the Florida Class

(Violation of Florida’s Deceptive and Unfair Trade Practices Act,F.S.A., 501.201 et seq. (“FDUTPA”))




To the extent these allegations require a response, Whirlpool admits that Plaintiffs are consumers

within the meaning of FDUPTA. Whirlpool denies the remaining allegations in Paragraph 213.


To the extent these allegations require a response, Whirlpool admits that it engaged in trade or

commerce within the meaning of FDUPTA.

215. Whirlpool denies the allegations in Paragraph 215, including all

subparagraphs.



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ELEVENTH CAUSE OF ACTIONAsserted on Behalf of the Illinois Class

(Violation of Illinois Consumer Fraud and Deceptive Business Practices Act,815 ILCS 505/1 et seq. (“CFDBPA”))





within the meaning of CFDBPA. Whirlpool denies the remaining allegations in Paragraph 221.



commerce within the meaning of CFDBPA.








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TWELFTH CAUSE OF ACTIONAsserted on Behalf of the New York Class

(Violations of Section 349 of New York GeneralBusiness Law: Deceptive Acts And Practices)



230. Whirlpool admits that Plaintiffs Glennon and Cohen purport to bring this

cause of action on behalf of themselves and as a class action on behalf of New York consumers.





THIRTEENTH CAUSE OF ACTIONAsserted on Behalf of the New Jersey Class

(Violations of New Jersey Consumer Fraud Act (“CFA”), N.J.S.A. §§ 56:8-1 et seq.)



234. Whirlpool admits that Plaintiffs Sandholm-Pound and Beierschmitt purport

to bring this cause of action on behalf of themselves and as a class action on behalf of New Jersey

consumers. Whirlpool denies the propriety of any class proposed by Plaintiffs Sandholm-Pound

and Beierschmitt and denies the remaining allegations in Paragraph 234, if any.


To the extent these allegations require a response, Whirlpool admits that Plaintiffs are persons

within the meaning of the CFA. Whirlpool denies the remaining allegations in Paragraph 235.


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within the meaning of the CFA. Whirlpool denies the remaining allegations in Paragraph 236.



commerce within the meaning of the CFA.









FOURTEENTH CAUSE OF ACTIONAsserted on Behalf of the California Class

(Unfair Competition Law (Bus. & Prof. Code §§17200, et seq.)





Whirlpool denies the propriety of any class proposed by Plaintiff and denies the remaining



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257. Whirlpool admits that Plaintiffs Schaeffer and Call seek an order from this

Court awarding restitution, disgorgement, injunctive relief, and all other relief, but Whirlpool

denies that any such order should be entered. Whirlpool denies the remaining allegations in


FIFTEENTH CAUSE OF ACTIONAsserted on Behalf of the California Class

Consumers Legal Remedies Act(Violation of California Civil Code §§ 1750 et seq.)






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To the extent these allegations require a response, Whirlpool admits that Plaintiffs Schaeffer and

Call were consumers as that term is defined in Civ. Code § 1761(d).


To the extent these allegations require a response, Whirlpool admits that the Subject Washers are

“goods” as that term is defined in Civ. Code § 1761(a).


To the extent these allegations require a response, Whirlpool admits that it is a “person” as that

term is defined in Civ. Code § 1761(c).


To the extent these allegations require a response, Whirlpool admits that Plaintiffs Schaeffer’s and

Call’s purchase of their respective Subject Washers constituted “transaction[s]” as that term is

defined in Civ. Code § 1761(e).



266. Whirlpool states that the statutory provision referred to in Paragraph 266 is

a written document that speak for itself, and Whirlpool denies any characterization that is

inconsistent with that document.


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270. Whirlpool admits that the Subject Washers are Energy Star compliant.







SIXTEENTH CAUSE OF ACTIONAsserted on Behalf of the Maryland Class

(Violation of Maryland Consumer Protection Act,Md. Code Ann. §§ 13-303 et seq. (“MCPA”))



276. Whirlpool admits that Plaintiff Nordan purports to bring this cause of action

on behalf of herself and as a class action on behalf of Maryland consumers. Whirlpool denies the

propriety of any class proposed by Plaintiffs and denies the remaining allegations in Paragraph

276, if any.





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SEVENTEENTH CAUSE OF ACTIONAsserted on Behalf of the North Carolina Class

(Violation of North Carolina Unfair and Deceptive Trade Practices Act §75-1.1 (“NCGS”))



286. Whirlpool admits that Plaintiff Snyder purports to bring this cause of action

on behalf of herself and as a class action on behalf of North Carolina consumers. Whirlpool











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EIGHTEENTH CAUSE OF ACTIONAsserted on Behalf of the Arizona Class

Violation of Arizona’s Consumer Fraud Act (A.R.S. §§44-1521, et seq.)



295. Whirlpool admits that Plaintiff Strong purports to bring this cause of action

on behalf of herself and as a class action on behalf of Arizona consumers. Whirlpool denies the


295, if any.



inconsistent with that document. Whirlpool denies the remaining allegations in Paragraph 296.










40

305. Whirlpool admits that Plaintiff Strong seeks injunctive relief and

disgorgement as alleged in Paragraph 305, but Whirlpool denies that Plaintiffs are entitled to any

such relief. Whirlpool denies the remaining allegations in Paragraph 305, if any.

NINETEENTH CAUSE OF ACTIONAsserted on Behalf of the Texas Class

(Violation of Texas Deceptive Trade Practices - Consumer Protection Act, TEX.BUS & COM CODE §§ 17.41 et seq. (“DTPA”))



307. Whirlpool admits that Plaintiff Gardner purports to bring this cause of action

on behalf of herself and as a class action on behalf of Texas consumers. Whirlpool denies the


307, if any.



within the meaning of DTPA. Whirlpool denies the remaining allegations in Paragraph 308.



commerce within the meaning of DTPA.

310. Whirlpool denies the allegations in Paragraph 310, including all

subparagraphs.




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REQUEST FOR RELIEF

Whirlpool denies that Plaintiffs are entitled to any of the relief Plaintiffs request in the

Complaint.

AFFIRMATIVE DEFENSES1

FIRST DEFENSE

Plaintiffs’ Complaint fails to state facts sufficient to state a claim for which relief can be

granted against Whirlpool.

SECOND DEFENSE

Plaintiffs have failed to mitigate their damages, if any.

THIRD DEFENSE

Plaintiffs’ claims are barred, in whole or in part, by the defenses of estoppel, laches, and

waiver.

1 It is Whirlpool’s position that Plaintiffs bear the burden of proof regarding all of the following warranty liability elements: existence of a warranty issued by Whirlpool to the plaintiff; breach of the terms of the warranty by Whirlpool; the plaintiff provided Whirlpool with adequate pre-suit notice of the breach; the plaintiff provided Whirlpool with a reasonable opportunity to cure the breach; the existence of damages; and that the breach was the proximate cause of the plaintiff’s damages. To the extent that any relevant state’s laws may deem certain warranty defenses to be affirmative defenses, Whirlpool pleads, as a precaution, several warranty defenses among its affirmative defenses.


42

FOURTH DEFENSE

Upon information and belief, any damages sustained by Plaintiffs were proximately caused

and occasioned by the actions and omissions of Plaintiffs or others, and these acts and omissions

were the sole causes of Plaintiffs’ alleged damages. Therefore, Whirlpool pleads independent,

intervening, or suspending acts and omissions of Plaintiffs and others as a complete bar to this

action.

FIFTH DEFENSE

The product in question was covered by an express written warranty that Plaintiffs

accepted at the time of purchase of their washers, and that written warranty is limited in scope

and time and does not cover the acts, omissions, and other matters complained of by Plaintiffs.

Plaintiffs accepted that limited written warranty in lieu of any other warranty or representation,

express or implied. Therefore, Whirlpool pleads the written warranty as a complete bar to

Plaintiffs’ claims.

SIXTH DEFENSE

Any damages suffered by Plaintiffs were proximately caused and occasioned by the abuse,

misuse, or improper use of the washers in question, and therefore Plaintiffs’ claims are barred.


43

SEVENTH DEFENSE

The Complaint and each of its causes of action are barred, limited, or Plaintiffs’ recovery

should be reduced, by Plaintiffs’ negligence or other fault, pursuant to the doctrine of comparative

fault.

EIGHTH DEFENSE

At least some of the class claims alleged in the Complaint are barred, in whole or in part,

by applicable statutes of limitations or repose.

NINTH DEFENSE

Plaintiffs failed to give Whirlpool adequate notice of the alleged breach of express or

implied warranties under applicable law.

TENTH DEFENSE

Plaintiffs failed to afford Whirlpool a reasonable opportunity to cure the alleged breach of

express or implied warranties.

ELEVENTH DEFENSE

The Complaint does not satisfy the requirements of Rule 23 of the Federal Rules of Civil

Procedure, and therefore the putative class claims should be dismissed.

TWELFTH DEFENSE

To the extent any part of Plaintiffs’ Complaint may be construed as alleging or seeking

recovery of punitive or exemplary damages against Whirlpool, unless Whirlpool’s liability for

punitive damages and the appropriate amount of punitive damages are required to be established


44

by clear and convincing evidence, any award of punitive damages would violate Whirlpool’s due

process rights guaranteed by the Fourteenth Amendment to the United States Constitution and by

the Ohio, California, Florida, Illinois, New Jersey, New York, Arizona, Indiana, Maryland, North

Carolina, and Texas constitutions, and would be improper under the common law and public

policies of Ohio, California, Florida, Illinois, New Jersey, New York, Arizona, Indiana, Maryland,

North Carolina, and Texas.

THIRTEENTH DEFENSE

To the extent any part of Plaintiff’s Complaint may be construed as alleging or seeking

recovery of punitive or exemplary damages against Whirlpool, any such claim cannot be

maintained unless the trial is bifurcated. Any award of punitive damages without bifurcating the

trial and trying all punitive damages issues only if and after liability on the merits has been found,

would violate Whirlpool’s due process rights guaranteed by the Fourteenth Amendment to the

United States Constitution and by the Ohio, California, Florida, Illinois, New Jersey, New York,

Arizona, Indiana, Maryland, North Carolina, and Texas constitutions and would be improper

under the common law and public policies of Ohio, California, Florida, Illinois, New Jersey, New

York, Arizona, Indiana, Maryland, North Carolina, and Texas.

FOURTEENTH DEFENSE

To the extent any part of Plaintiffs’ Complaint may be construed as alleging or seeking


maintained, because an award of punitive damages under applicable law would be unlawful and

unauthorized, and would be void for vagueness, both facially and as applied, as a result of, among


45

other deficiencies, the absence of adequate notice of what conduct is subject to punishment, the

absence of adequate notice of what punishment may be imposed, and the absence of a

predetermined limit, such as a maximum multiple of compensatory damages or a maximum

amount, on the amount of punitive damages that a jury may impose, all in violation of the due

process clause of the Fourteenth Amendment to the United States Constitution, and the Ohio,

California, Florida, Illinois, New Jersey, New York, Arizona, Indiana, Maryland, North Carolina,

and Texas constitutions, and the common law and public policies of Ohio, California, Florida,

Illinois, New Jersey, New York, Arizona, Indiana, Maryland, North Carolina, and Texas.

FIFTEENTH DEFENSE

To the extent any part of Plaintiff’s Complaint may be construed as alleging or seeking


maintained, because any award of punitive damages under applicable law would be by a jury that

(1) is not provided standards of sufficient clarity for determining the appropriateness, and the

appropriate size, of a punitive damages award, (2) is not adequately instructed on the limits of

punitive damages imposed by the applicable principles of deterrence and punishment, (3) is not

expressly prohibited from awarding punitive damages, or determining the amount of an award of

punitive damages, in whole or in part, on the basis of invidiously discriminatory characteristics,

including the residence, wealth, and corporate status of Whirlpool, (4) is permitted to award

punitive damages under a standard for determining liability for punitive damages that is vague and

arbitrary and does not define with sufficient clarity the conduct or mental state that makes

punitive damages permissible, and (5) is not subject to adequate trial court and appellate judicial


46

review for reasonableness and furtherance of legitimate purposes on the basis of objective

standards. Any such verdict would violate Whirlpool’s due process rights guaranteed by the

Fourteenth Amendment to the United States Constitution and by the due process and equal

protection provisions of the Ohio, California, Florida, Illinois, New Jersey, New York, Arizona,

Indiana, Maryland, North Carolina, and Texas constitutions, and would be improper under the

common law and public policies of Ohio, California, Florida, Illinois, New Jersey, New York,

Arizona, Indiana, Maryland, North Carolina, and Texas.

SIXTEENTH DEFENSE

To the extent that Plaintiff seeks to extrapolate liability, causation, or damages on a class-

wide basis without requiring each putative class member to prove liability, causation, and damages

to establish each individual’s claims, Plaintiff’s class claims are barred, in whole or in part, by the

Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States

Constitution, as well as the Seventh Amendment’s guarantee of a jury trial.

SEVENTEENTH DEFENSE

The product in question is free from defect by virtue of Whirlpool’s compliance with

industry standards, the state of the art, and any applicable government codes, standards, or

regulations.

JURY DEMAND

Whirlpool demands a trial by jury on all issues so triable.


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Dated: December 2, 2009

Respectfully submitted,

s/ Michael T. WilliamsMichael T. WilliamsMalcolm E. WheelerGalen D. BellamyAllison R. CohnEvan B. StephensonJoel S. NeckersWheeler Trigg O’Donnell LLP1801 California Street, Suite 3600Denver, Colorado 80202Telephone: (303) 244-1800Facsimile: (303) 244-1879E-mail: [email protected]

and

F. Daniel Balmert (0013809)Anthony J. O’Malley (0017506)Vorys, Sater, Seymour and Pease LLP2100 One Cleveland Center1375 East Ninth StreetCleveland, Ohio 44114-1724Telephone: (216) 479-6159Facsimile: (216) 937-3735E-mail: [email protected]

Attorneys for Defendant Whirlpool Corporation


CERTIFICATE OF SERVICE (CM/ECF)

I hereby certify that on December 2, 2009, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses:

• F. Daniel [email protected]

• Galen D. Bellamy [email protected]

• Natalie Finkelman Bennett [email protected]

• Brian D. Brooks [email protected]

• Richard J. Burke [email protected],[email protected]

• Lindsey A. Carr [email protected],[email protected]

• Mark P. Chalos [email protected],[email protected]

• Allison R. Cohn [email protected]

• Gregory R. Farkas [email protected],[email protected]

• Scott A. George [email protected]

• Steven R. Jaffe [email protected],[email protected],[email protected],[email protected]

• George K. Lang [email protected]

• Karen M. Leser-Grenon [email protected]


2

• Heather M. Lutz [email protected],[email protected]

• Peter L. Masnik [email protected]

• James E. Miller [email protected]

• Joel Neckers [email protected],[email protected]

• Anthony J. O'Malley [email protected],[email protected]

• Kara J. Rosenthal [email protected]

• Brian G. Ruschel [email protected]

• Jacqueline Sailer [email protected]

• Mark Schlachet [email protected]

• Steven A. Schwartz [email protected]

• Jonathan D. Selbin [email protected]

• James C. Shah [email protected]

• Jonathan Shub [email protected]

• Evan B. Stephenson [email protected],[email protected]

• Paul M. Weiss [email protected],[email protected],[email protected],[email protected]


3

• Malcolm E. Wheeler [email protected]

• Michael Timothy Williams [email protected],[email protected],[email protected],[email protected]

• Steven L. Wittels [email protected],[email protected],[email protected],[email protected],[email protected],[email protected],[email protected],[email protected]

• Allen Wong [email protected]

s/ Michael T. WilliamsMichael T. Williams, Esq.Attorney for Defendant Whirlpool Corp.Wheeler Trigg O’Donnell LLP1801 California Street, Suite 3600Telephone: (303) 244-1800Facsimile: (303) 244-1879Email: [email protected]


united states district court northern district ofohio

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