Jodi Tapply, Jeannette Buschman, Michael Partipilo, Barbara Lester v. Whirlpool Corporation

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 25a0212p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JODI TAPPLY, JEANNETTE BUSCHMAN, MICHAEL
PARTIPILO, BARBARA LESTER, and VICKI MEYERHOLZ,
on behalf of themselves and all others similarly
situated,
Plaintiffs-Appellants,
v.
WHIRLPOOL CORPORATION,
Defendant-Appellee.
┐
│
│
│
│
│
│
│
│
│
│
┘
No. 23-1666
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:22-cv-00758—Jane M. Beckering, District Judge.
Argued: October 29, 2024
Decided and Filed: August 6, 2025
Before: MOORE, COLE, and LARSEN, Circuit Judges.
_________________
COUNSEL
ARGUED: Jennifer Bennett, GUPTA WESSLER, San Francisco, California, for Appellants.
Aileen M. McGrath, MORRISON & FOERSTER LLP, San Francisco, California, for Appellee.
ON BRIEF: Jennifer Bennett, GUPTA WESSLER LLP, San Francisco, California, Robert
Friedman, GUPTA WESSLER LLP, Washington, D.C., Alan M. Feldman, Edward S. Goldis,
Zachary Arbitman, FELDMAN SHEPHERD WOHLGELERNTER TANNER WEINSTOCK
& DODIG, LLP, Philadelphia, Pennsylvania, Michael F. Ram, Marie N. Appel, MORGAN
& MORGAN, San Francisco, California, David H. Fink, Nathan J. Fink, FINK BRESSACK,
Bloomfield Hills, Michigan, for Appellants. Aileen M. McGrath, Joel F. Wacks, MORRISON
& FOERSTER LLP, San Francisco, California, Joseph R. Palmore, MORRISON & FOERSTER
LLP, Washington, D.C., Alexandra Avvocato, MORRISON & FOERSTER LLP, New York,
New York, for Appellee. Terri S. Reiskin, NELSON MULLINS RILEY & SCARBOROUGH
LLP, Washington, D.C., Christopher Shaun Polston, NELSON MULLINS RILEY
& SCARBOROUGH LLP, Atlanta, Georgia, Brian D. Schmalzbach, MCGUIREWOODS LLP,
>

-- 1 of 24 --

No. 23-1666 Tapply, et al. v. Whirlpool Corp. Page 2
Richmond, Virginia, Philip S. Goldberg, SHOOK HARDY & BACON L.L.P., Washington,
D.C., for Amici Curiae.
COLE, J., delivered the opinion of the court in which MOORE, J., concurred. LARSEN,
J. (pp. 20–24), delivered a separate dissenting opinion.
_________________
OPINION
_________________
COLE, Circuit Judge. Plaintiffs own ovens with front-mounted burner knobs
manufactured by Whirlpool Corporation. In their class-action complaint, they allege that their
ovens’ stovetop burners are capable of “unintended actuation,” whereby the stovetops ignite
inadvertently. After plaintiffs sued Whirlpool, the district court found that plaintiffs had Article
III standing to pursue their claims but dismissed the amended complaint for failure to state
plausible claims for relief. Plaintiffs now appeal dismissal of their state common law and
statutory claims, while Whirlpool argues the district court erred by not dismissing plaintiffs’
amended complaint for lack of Article III standing. We affirm in part and reverse in part.
I.
Plaintiffs Jodi Tapply, Jeannette Buschman, Michael Partipilo, Barbara Lester, and Vicki
Meyerholz span five states—Michigan, Illinois, Oklahoma, New Hampshire, and Nevada—and
allege common law fraud and consumer protection claims under each state’s laws. Plaintiffs
purchased ovens with stovetop ranges, all of which were manufactured by defendant Whirlpool
Corporation. The products are single-device ovens with stovetop burners, each containing front-
mounted control knobs that actuate the burners atop the stove (the Range), which plaintiffs claim
acuate unintentionally (the Defect). These front-mounted knobs—including (A) the Range’s
alleged Defect and (B) what Whirlpool knew about the Defect prior to sale—are the focus of
plaintiffs’ amended complaint.1
1Plaintiffs’ putative class action also alleges a sub-class of consumers who purchased an electric Range.
Plaintiffs, however, never owned an electric Range. The district court held that plaintiffs had standing at the Rule
12(b)(6) stage to assert claims on behalf of the sub-class of electric Range owners. Whirlpool has not appealed that
ruling, and the parties do not address the electric Range in their briefing. Accordingly, issues regarding the putative
electric Range sub-class are not before us.

-- 2 of 24 --

No. 23-1666 Tapply, et al. v. Whirlpool Corp. Page 3
A.
Plaintiffs purchased their respective Ranges between November 2018 and August 2021.
Each plaintiff experienced their Range actuating unintentionally, noticing the Range was on only
once they smelled gas in their home.
The front-mounted knobs were designed to turn the stovetop burners on with two discrete
actions: the user pushes the knob inwards, then rotates it to the “on” position to actuate the
burner. Because of the low level of force required to push the knobs in and the slight distance
the knobs must turn to actuate the burners, however, plaintiffs’ Ranges often turn on with one
continuous motion. As such, their burners could be accidentally actuated with “the slightest
touch, bump, or brush.” (Am. Compl., R. 13, PageID 109, 111, 113, 114–15, 116, ¶¶ 27, 37, 46,
56, 65).
Plaintiffs allege that consumers, including themselves, expect their Ranges to be actuated
by intentional and deliberate action and not by this inadvertent contact with the burner knobs.
So, the unintended actuation has caused plaintiffs to be more cautious around the Range and
constantly check the knobs to ensure they had not been switched on. For example, one plaintiff
would have to pay particularly close attention to the Range if her grandchild with special needs
would come to visit.
Additionally, the Range does not have any guards over the knobs to reduce the risk of
unintentional actuation, nor does the oven door handle act as an effective barrier between a user
and the knobs. Plaintiffs allege that the Defect is hazardous and renders the Range unsafe for
use, though plaintiffs continue to use theirs. The Range’s user manual states that failing to turn
off all controls while not cooking “can result in death or fire.” (Id. at PageID 122, ¶ 73.)
Plaintiffs further allege that, due to the Defect, they paid far more than the reasonable
value of the Range and would have paid substantially less—or foregone purchase altogether—
had Whirlpool disclosed the Defect.

-- 3 of 24 --

No. 23-1666 Tapply, et al. v. Whirlpool Corp. Page 4
B.
Plaintiffs’ amended complaint alleges that, while plaintiffs did not know about the Defect
at the point of sale, Whirlpool has known that the Range is inherently defective and unfit for its
intended use due to unintentional actuation. These allegations of knowledge arise from incident
reports submitted to the United States Consumer Product Safety Commission (CPSC) and
consumer reviews on Whirlpool’s website.
Plaintiffs include eight CPSC reports in their amended complaint, each of which CPSC
sent to Whirlpool. These reports all involved consumers who accidentally actuated their Range
burners consistent with the Defect. Dated between January 2017 and February 2020, each
incident report discusses the Defect and the date the consumer’s incident occurred, and the
website plaintiffs cite lists the date CPSC sent each report to Whirlpool. Although plaintiffs cite
only eight incident reports in their amended complaint, they allege these eight incident reports
represent just a “sample” of numerous reports consumers submitted to CPSC and forwarded to
Whirlpool. (Id. at PageID 126, ¶ 80.)
Consumers also posted reviews directly to Whirlpool’s website. Plaintiffs include several
reviews wherein consumers complained of unintended actuation from the alleged Defect and the
resulting gas odor.
C.
Plaintiffs brought a class action complaint on behalf of a purported nationwide class of
persons who purchased a Range with the Defect, as well as sub-classes for residents of
Michigan, Illinois, Nevada, Oklahoma, and New Hampshire. Their amended complaint brings
ten counts alleging violations of federal warranty law, fraud by omission, breach of express
warranty, breach of the implied warranty of merchantability, unjust enrichment, and violation of
state consumer protection statutes.
Whirlpool argued that the amended complaint should be dismissed for two reasons. First,
Whirlpool argued that plaintiffs lacked Article III standing to bring their claims. Second,
Whirlpool argued that plaintiffs’ amended complaint failed to state a plausible claim for relief.

-- 4 of 24 --

No. 23-1666 Tapply, et al. v. Whirlpool Corp. Page 5
The district court rejected Whirlpool’s first argument and found that plaintiffs alleged a
sufficiently concrete injury to satisfy Article III’s standing requirements. Nevertheless, the
district court dismissed each of plaintiffs’ claims for failure to state a claim.
Plaintiffs timely appealed the district court’s dismissal of their state common law fraud
and statutory consumer protection claims. In its response, Whirlpool argues that the court should
reverse the district court’s finding of Article III standing and dismiss plaintiffs’ case on
jurisdictional grounds, or, alternatively, affirm the district court’s dismissal of plaintiffs’ claims
on the merits.
II.
We apply de novo review to the legal conclusions reached by the federal district court in
its dismissal of complaints under Federal Rule of Civil Procedure 12(b)(6). Mattera v. Baffert,
100 F.4th 734, 739 (6th Cir. 2024) (citing United Food & Com. Workers Union-Emp. Pension
Fund v. Rubber Assocs., Inc., 812 F.3d 521, 524 (6th Cir. 2016)). We “construe the complaint in
the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable
inferences in favor of the plaintiff.” Watson Carpet & Floor Covering, Inc. v. Mohawk Indus.,
Inc., 648 F.3d 452, 456 (6th Cir. 2011) (citation omitted).
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must allege sufficient facts that,
taken as true, state a plausible claim for relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint states a plausible claim for
relief where its alleged facts “allow[] the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
III.
To survive Whirlpool’s motion to dismiss, plaintiffs here must have plausibly alleged that
(A) they suffered a concrete injury in fact to confer Article III standing; (B) Whirlpool knew of
the Defect; (C) Whirlpool had a duty to disclose the Defect; and (D) Whirlpool violated several
state-specific consumer protection statutes.

-- 5 of 24 --

No. 23-1666 Tapply, et al. v. Whirlpool Corp. Page 6
A.
Standing is a prerequisite to bringing claims in federal court. United States v. Texas, 599
U.S. 670, 675 (2023); U.S. Const. art. III, § 2, cl. 1. To have Article III standing, plaintiffs must
demonstrate that (1) they suffered an injury-in-fact; (2) the injury is fairly traceable to the
defendant’s conduct; and (3) a favorable decision would redress their injury. Food & Drug
Admin. v. All. for Hippocratic Med., 602 U.S. 367, 380 (2024). An injury in fact must be both
concrete and particularized, and actual or imminent. TransUnion LLC v. Ramirez, 594 U.S. 413,
423 (2021). Although Whirlpool does not contest that plaintiffs’ claims are traceable and
redressable, it argues the district court erred by finding that plaintiffs suffered a concrete injury-
in-fact.
This court, sitting en banc, recently considered whether named plaintiffs in a consumer
class action had suffered a concrete injury-in-fact. See Speerly v. Gen. Motors, LLC, 143 F.4th
306, 314–15 (6th Cir. 2025) (en banc). In Speerly, the plaintiffs purchased vehicles that
shuddered and shifted due to transmission issues, and each named plaintiff’s vehicle suffered
from the defect. Id. at 315. The court concluded that when a consumer buys a defective product
and the defect manifests, the consumer has suffered a concrete injury-in-fact. Id. That is, the
consumer has paid for something which they have not received—a defect-free product.2
Here, each of the named plaintiffs alleges that they suffered a concrete economic injury
because they were deprived of the benefit of their bargain—a Range that turns on through only
intentional and deliberate action. Each plaintiff alleges that their Range turned on unexpectedly,
causing gas fumes to fill their homes. And each plaintiff alleges that, had Whirlpool disclosed
the Defect, they would have paid far less for their Range or foregone the purchase altogether.
2This is not to say that a consumer who purchases a product with an unmanifested defect has not suffered
an Article III injury. Indeed, this court in Speerly recognized that “[m]ost of our sister circuits” to confront this
issue—the First, Fifth, Seventh, Ninth, and Eleventh—have permitted consumers to proceed with unmanifested
defect claims under an overpayment theory of liability. 143 F.4th at 314 (collecting cases). Our precedent similarly
supports a theory of standing for economic injuries where a product’s defect has not yet manifested. See In re
Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838, 856–57 (6th Cir. 2013); see also Loreto
v. Procter & Gamble Co., 515 F. App’x 576, 581 (6th Cir. 2013) (concluding that paying more for a product
because of a company’s misrepresentations was enough to demonstrate a concrete injury-in-fact). Regardless,
Speerly made certain that each consumer whose product has manifested a defect has suffered a concrete Article III
injury.

-- 6 of 24 --

No. 23-1666 Tapply, et al. v. Whirlpool Corp. Page 7
Thus, the amended complaint alleges that plaintiffs reasonably expected their Range to turn on
through only deliberate action, and that their Range deviates from this expected benefit.
Therefore, plaintiffs suffered concrete injuries that satisfy the requirements of Article III.
Whirlpool’s arguments to the contrary are unpersuasive. Whirlpool concedes that
overpayment for an allegedly defective product can satisfy Article III standing requirements, so
long as a plaintiff properly pleads it. (Oral Arg. Rec. at 11:45–12:10.) Nevertheless, Whirlpool
argues that, here, plaintiffs have not plausibly alleged they suffered a benefit of the bargain
injury because they allege a perceived risk of future harm, rather than harm arising from a defect
they bargained for. (Id. at 12:10–12:47.) In other words, Whirlpool argues that plaintiffs must
have bargained for something that differs from the product they received at the point of sale. (Id.
at 12:50–13:27.)
But that is precisely what plaintiffs allege. Plaintiffs allege that, at the point of sale, they
reasonably expected that a Range would turn on through only deliberate action, rather than
through inadvertent contact with the burner knobs. (Am. Compl., R. 13, PageID 119–20, ¶¶ 70–
71 (“Consumers reasonably expect that Ranges can only be actuated by intentional and
deliberate action. . . . The Ranges do not conform . . . to a reasonable consumer’s expectation,
because the knobs are susceptible to unintentional actuation rendering the Ranges dangerously
defective.”).) Thus, plaintiffs plausibly allege the Range did not conform to their expectations
because of the Defect. As such, plaintiffs have standing.
B.
To properly bring a common law fraud claim, plaintiffs must plausibly allege Whirlpool
knew of the Defect. Smith v. Gen. Motors LLC, 988 F.3d 873, 883–84 (6th Cir. 2021). The
parties dispute whether plaintiffs must also allege that Whirlpool had pre-sale knowledge of the
Defect’s safety implications. Because we conclude that plaintiffs plausibly pleaded that the
Defect has inherent safety risks, we need not address the parties’ arguments regarding whether a
safety-risk knowledge requirement applies. See id. at 888–89 (Stranch, J., concurring)
(expressing concern with requiring knowledge requirement not only of a defect, but of a defect’s
safety risk at the motion to dismiss stage).

-- 7 of 24 --

No. 23-1666 Tapply, et al. v. Whirlpool Corp. Page 8
Before assessing the plausibility of plaintiffs’ allegations, we must determine which
pleading standard applies. Federal Rule of Civil Procedure 8 imposes a general pleading
standard, whereas Rule 9(b) imposes a heightened “particularity” standard for fraud claims. Fed.
R. Civ. P. 8, 9(b). Although Rule 9(b)’s text permits general allegations regarding knowledge,
this court has previously imposed a particularity requirement to the knowledge element.
Compare Smith, 988 F.3d at 883 (“Rule 9(b) . . . permits general allegations about the
defendant’s knowledge to avoid a 12(b)(6) motion to dismiss.”), with id. at 884 (“In the context
of this case under the standard in Mross, that means that Plaintiffs needed to ‘state with
particularity’ factual allegations supporting the assertion that GM knew about the safety
implications of the dashboard defect.”).
Smith does not raise the pleading standard for knowledge in product defect claims. Rule
9(b) specifically excludes “knowledge” from heightened pleading requirements for fraud. Fed.
R. Civ. P. 9(b) (“Malice, intent, knowledge, and other conditions of a person’s mind may be
alleged generally.”). Smith was a unique vehicle defect case involving invited error, and we
required the plaintiffs to state their knowledge allegations with particularity “under the standard
in Mross.” 988 F.3d at 879–80, 884 (discussing that the parties specifically requested the district
court follow the standards in Mross, a related class action involving the same vehicle defect).
Mross, however, explicitly declined to apply Rule 9(b)’s heightened pleading requirements to the
knowledge element of fraud claims. Mross v. Gen. Motors Co., LLC, No. 15-C-0435, 2016 WL
4497300, at *6 (E.D. Wis. Aug. 25, 2016) (“I note that my conclusion that the plaintiffs have not
adequately alleged GM’s knowledge of the defect and of the safety risk is not based on the
pleading requirement that the circumstances constituting fraud be stated with particularity. []
Rather, even when necessary to support a fraud claim, ‘knowledge’ may be alleged generally.”).
We will not impose a particularity requirement for knowledge allegations, as doing so would
contravene the explicit text of Rule 9(b).
Here, although plaintiffs need not allege Whirlpool’s knowledge with particularity, they
nevertheless must allege sufficient facts to show Whirlpool plausibly knew of the Defect.
Plaintiffs must allege more than conclusory statements that, upon information and belief, a

-- 8 of 24 --

No. 23-1666 Tapply, et al. v. Whirlpool Corp. Page 9
manufacturer reads third-party websites and monitors report databases. See Smith, 988 F.3d at
885.
Both plaintiffs and Whirlpool primarily analogize to Smith. In Smith, the plaintiffs
alleged that consumer complaints of safety defects were posted on online vehicle websites and
that customers had sent complaints to the National Highway Traffic Safety Administration
(NHTSA) database. Id. The plaintiffs alleged that GM monitored those online forums and the
NHTSA database, so GM must have known about the defects. Id.
This court rejected the Smith plaintiffs’ arguments, holding that allegations of GM
reading public message boards and monitoring the online NHTSA database were speculative
absent supporting facts. Id. The allegations were not “‘frequent enough that they were not lost
in a sea of complaints and repairs amassing by the dozens each day.’” Id. (quoting Roe v. Ford
Motor Co., No. 2:18-cv-12528, 2019 WL 3564589, at *7 (E.D. Mich. Aug. 6, 2019)). Further,
the alleged safety defect was a cracked dashboard which, if an airbag malfunctioned, “could turn
the plastic dashboards into deadly projectiles during a crash.” Id. at 875. Thus, the danger could
only materialize if the dashboard cracked, the driver crashed, and the airbag malfunctioned. The
defect’s potential to harm consumers was therefore too attenuated. See id.
This case differs from Smith for two key reasons which, viewed together, demonstrate
that plaintiffs plausibly allege Whirlpool’s knowledge of the Defect and its safety risks. First,
Smith involved allegations of constructive knowledge, whereas plaintiffs here pleaded actual
knowledge arising from direct government communication made pursuant to federal law, rather
than online public forums. Second, the Defect poses inherent safety risks, unlike the cracked
dashboard in Smith.
First, Smith concerned constructive knowledge, and the necessary allegations absent in
Smith are present here. The Smith plaintiffs never alleged that GM “engaged with or received
complaints about the defective dashboard and its safety risk.” Smith, 988 F.3d at 885. They
merely offered allegations upon “information and belief” that GM monitored online forums and
databases. Id.

-- 9 of 24 --

No. 23-1666 Tapply, et al. v. Whirlpool Corp. Page 10
By contrast, plaintiffs here allege that CPSC sent incident reports directly to Whirlpool
pursuant to its obligation under federal law. Whereas the Smith plaintiffs alleged that GM knew
of the defects from publicly available websites and the NHTSA databases—and included no
allegation that the manufacturer had received such complaints directly—plaintiffs here plausibly
allege that CPSC sent product harm reports directly to Whirlpool consistent with their reporting
obligations. See 15 U.S.C. § 2055a(c)(1); 16 C.F.R. § 1102.20.
Plaintiffs’ allegations are far more specific than those in Smith. They allege the precise
dates on which consumers sent complaints to CPSC, the contents of those complaints, and the
dates on which CPSC forwarded the incident reports to Whirlpool. The amended complaint cites
CPSC’s database showing the dates CPSC sent consumer complaints about the Defect to
Whirlpool. Accordingly, plaintiffs’ allegations are more specific than the mere “information and
belief” allegations in Smith. Therefore, plaintiffs plausibly allege that Whirlpool received CPSC
incident reports concerning the Defect, giving rise to actual knowledge of the Defect.
Second, the CPSC complaints sent to Whirlpool plausibly demonstrate that Whirlpool
knew of the Defect’s safety risks. Here, the Defect is that a Range may actuate unintentionally.
And, if a Range actuates, gas will emanate from the user’s stove. Accordingly, the Defect poses
a safety risk inherent to the use of the Ranges. The CPSC incident reports and consumer
complaints cited in the amended complaint discuss these concerns. (See, e.g., Am. Compl.,
R. 13, PageID 126–128, 132–34, ¶¶ 81–85, 97–99.) These complaints plausibly demonstrate that
Whirlpool knew the Defect poses a safety risk. Contra Smith, 988 F.3d at 885–86 (explaining
that the customer complaints “might have put GM on notice about the cracked dashboard”—the
defect—but not the safety risk associated with an event that had never manifested). Moreover,
Whirlpool’s own Range user manual contemplates the Range’s safety concerns when it warns
that failing to turn off all controls while not cooking “can result in death or fire.” (Am. Compl.,
R. 13, PageID 122, ¶ 73.) And CPSC’s involvement underscores the safety risks involved in this
case, as Congress established CPSC due to its concern that consumers faced “unreasonable risks
of injury” from products. 15 U.S.C. §§ 2051(a), 2053(a).
We conclude that a plaintiff plausibly alleges that a manufacturer knew of the alleged
product defect when a government agency, required by law to transmit consumer complaints

-- 10 of 24 --

No. 23-1666 Tapply, et al. v. Whirlpool Corp. Page 11
about a safety defect to a manufacturer, indeed transmits those complaints to the manufacturer.
Online chatter is fundamentally different from direct government notice. Contrary to the
dissent’s characterization, this is not “a rule without a limitation,” nor is it a new rule to
distinguish Smith. (Dissent at 4–5.) The limitation is apparent: a plaintiff must plausibly allege
that the federal government notified a company of a safety defect, not merely that a consumer
complained to the government or some other third party. Cf. Smith, 988 F.3d at 885.
This conclusion is consistent with the rules governing inferences in a Rule 12(b)(6)
motion to dismiss. Assessing whether Whirlpool “engaged with or received” complaints
requires us to draw inferences. Smith, 988 F.3d at 885. Here, plaintiffs assert that Whirlpool
knew of the Defect because it received notice of the Defects from a governmental agency. The
amended complaint goes on to provide, as examples, eight complaints identifying the safety
concern and the dates CPSC sent each complaint to Whirlpool. If we concluded that Whirlpool
did not “engage[] with or receive[]” these complaints despite CPSC having sent them, we would
be drawing an inference in Whirlpool’s favor. Rule 12(b)(6) requires us to do the opposite at the
motion to dismiss stage. Fed. R. Civ. P. 12(b)(6); see VCST Int’l B.V. v. BorgWarner
Noblesville, LLC, 142 F.4th 393, 399 (6th Cir. 2025).
The dissenting opinion concludes that plaintiffs fail to plausibly plead that Whirlpool
engaged with or examined the consumer complaints, citing a lack of explanation of Whirlpool’s
process for engaging with the complaints. (Dissent at 4.) But plaintiffs could not know such
information at this stage. Without discovery, plaintiffs cannot plausibly allege Whirlpool’s
processes for reviewing CPSC complaints. Through discovery, plaintiffs may determine whether
Whirlpool examined or engaged with the complaints. At the motion to dismiss stage, where
plaintiffs lack information about Whirlpool’s internal process for reviewing government-
produced consumer reports, plaintiffs have met their burden to allege that Whirlpool plausibly
knew of the Defect.
At oral argument, counsel for Whirlpool argued that Smith requires three sets of
allegations lacking in plaintiffs’ amended complaint: plausible allegations that (1) Whirlpool
engaged with or received consumer complaints; (2) the complaints were frequent enough that
they constituted more than a “blip” on a manufacturer’s radar; and (3) the complaints identify a

-- 11 of 24 --

No. 23-1666 Tapply, et al. v. Whirlpool Corp. Page 12
safety defect. As discussed above, the amended complaint plausibly alleges that Whirlpool
received consumer complaints and that those complaints identify a safety defect. Whether the
CPSC reports were sufficiently frequent in number, however, requires further discussion.
In Smith, we reasoned that the plaintiffs did not allege sufficiently frequent online
complaints to infer constructive knowledge. There, the plaintiffs alleged that consumers posted
on public forums but did not allege that any complaint was made—or sent—directly to GM.
Smith, 988 F.3d at 885. We held that the plaintiffs failed to allege facts in support of their
allegations that GM reads online message boards and NHTSA databases. Id. This distinction is
key. Complaints made online to third parties, without any allegations that the complaints were
received by the manufacturer, must be sufficiently frequent to plausibly infer that the
manufacturer had learned of the issue. Id. (quoting Roe, 2019 WL 3564589, at *7).
This reasoning makes sense in the constructive knowledge context. To infer constructive
knowledge, the Smith plaintiffs had to allege that despite never directly receiving notice of the
consumer complaints, the complaints were so frequent that GM must have heard the online
chatter. See id. But here, we need not infer constructive knowledge because the complaints
were plausibly sent to and received by Whirlpool pursuant to federal law.
We also cannot assess whether these CPSC incident reports were lost in a sea of
complaints, see Smith 988 F.3d at 885, because there is no record yet of the number of CPSC
complaints Whirlpool receives. Plaintiffs cannot, at this preliminary stage of litigation, allege
who at Whirlpool processes, stores, or reads complaints sent by CPSC. Nor can they allege how
many CPSC complaints Whirlpool receives, making it difficult to determine whether these eight
“examples” are an anomaly.3
Because knowledge can be alleged generally and only plausibility is required at the
motion to dismiss stage, we reject Whirlpool’s “number-of-complaints” argument. And we note
3The dissenting opinion contends that Smith’s number-of-complaints reasoning controls here due to the few
examples of complaints cited compared to the size of Whirlpool. (Dissent at 5.) But the dissenting opinion’s
reasoning would create a sliding scale of protection for larger companies, requiring courts to ascertain whether a
certain number of complaints was sufficient to put a company of a certain size on notice that its product had a
defect. Such a sliding scale approach would be unworkable.

-- 12 of 24 --

No. 23-1666 Tapply, et al. v. Whirlpool Corp. Page 13
that in its motion to dismiss before the district court, Whirlpool did not advance this number-of-
complaints based argument. (See Br. in Support of Mot. to Dismiss, R. 26, PageID 490.)
Instead, Whirlpool argued that the complaints failed to allege personal injury or property
damage. (Id. (“Taken together, these complaints cited by Plaintiffs establish, at most, knowledge
of a minor inconvenience, which is insufficient to support Plaintiffs’ consumer fraud and
warranty claims.”).) Regardless, these eight incidents are cited as examples, and discovery may
reveal how many complaints raised safety concerns.4
For these reasons, plaintiffs plausibly alleged knowledge of the Defect and its related
safety risks. The district court erred in ruling to the contrary.5
C.
The district court found that, even if plaintiffs had plausibly alleged pre-sale knowledge,
plaintiffs’ claims should be dismissed for failing to plausibly allege that Whirlpool had a duty to
disclose the Defect. Because these claims arise under five states’ laws, we consider each state’s
law below.
Michigan. Under Michigan law, highly misleading actions give rise to a duty to disclose
product defects. M&D, Inc. v. W.B. McConkey, 585 N.W.2d 33, 39 (Mich. Ct. App. 1998). And
where a manufacturer has superior knowledge of a defect, not readily available to the consumer,
the manufacturer has a duty to disclose. Chapman v. Gen. Motors LLC, 531 F. Supp. 3d 1257,
1291 (E.D. Mich. 2021) (citing Glidden Co. v. Jandernoa, 5 F. Supp. 2d 541, 553 (W.D. Mich.
1998)); Estate of Pilgrim v. Gen. Motors LLC, 596 F. Supp. 3d 808, 824–25 (E.D. Mich. 2022)
4The dissenting opinion asserts that the district court expressly discussed the “number-of-complaints” issue
in its opinion and order. (Dissent at 4–5.) It did not. The district court focused on the safety implications of the
defect, concluding that “[p]laintiffs neither allege facts nor provide information to support the conclusory assertion
that the complaints were sent to [Whirlpool] by the CPSC, nor that the complaints contained sufficient information
to put [Whirlpool] on notice of the alleged safety implications of the Defect.” (Op. and Order, R. 40, PageID 726.)
To be sure, it cited Roe v. Ford Motor Co., No. 2:18-cv-12528, 2019 WL 3564589, at *7 (E.D. Mich. Aug. 6, 2019),
which discussed whether a complaint had identified enough complaints. But the district court’s reasoning plainly
relied on whether the complaints identified a safety concern, not the number of complaints made.
5Whirlpool’s brief and the dissenting opinion note that no CPSC complaints in the amended complaint
pertained to the Range models purchased by plaintiffs Buschman, Lester, and Meyerholz. Because Whirlpool did
not make this argument below and instead argued that plaintiffs’ allegations “establish, at most, knowledge of a
minor inconvenience,” (Mot. to Dismiss, R. 26, PageID 490), plaintiffs never had the opportunity to seek leave to
amend and address this deficiency. On remand, plaintiffs should seek leave to include such examples.

-- 13 of 24 --

No. 23-1666 Tapply, et al. v. Whirlpool Corp. Page 14
(finding plaintiffs sufficiently alleged a duty to disclose under Michigan law where the
manufacturer had superior knowledge of a defect causing engine parts to explode).
Consumers are not, as Whirlpool argues, required to inquire about a defect to trigger a
manufacturer’s duty to disclose. Though Whirlpool correctly notes that plaintiffs cite no
Michigan state court case applying the “superior knowledge” rule, M&D did not hold that
consumer inquiry was the sole circumstance imposing a duty to disclose. See M&D, 585
N.W.2d at 39 (noting that highly misleading actions give rise to a duty to disclose product
defects). Indeed, we have held that the duty arises “most commonly in a situation where inquiries
are made by the plaintiff,” but not that an inquiry is always required. See MacDonald v. Thomas
M. Cooley L. Sch., 724 F.3d 654, 666 (6th Cir. 2013) (quoting Hord v. Env’t Rsch. Inst. of
Michigan, 617 N.W.2d 543, 550 (Mich. 2000)).
Whirlpool contends that, even if a duty to disclose arises out of superior knowledge, they
lack such superior knowledge here. Because consumer complaints about the Defect were
publicly available online, Whirlpool argues that plaintiffs had access to the same information as
Whirlpool. But the Michigan Supreme Court has held otherwise when assessing fraud claims.
Titan Ins. Co. v. Hyten, 817 N.W.2d 562, 569 (Mich. 2012) (“[A]lthough the doctrines of
actionable fraud, innocent misrepresentation, and silent fraud each contain separate elements,
none of these doctrines requires that the party asserting fraud prove that the fraud could not have
been discovered through the exercise of reasonable diligence.”).
Moreover, we are reluctant to impose a duty of discovery on plaintiffs or defendants in
this context. Doing so would contravene our reasoning in Smith. In Smith, we concluded that
allegations of a manufacturer monitoring online message boards or public databases was
insufficient to plausibly demonstrate knowledge. See 988 F.3d at 885–86. But here, Whirlpool
asks us to conclude that, because plaintiffs could access similar information online, plaintiffs had
the same knowledge as Whirlpool. (Appellee Br. 42 (“Plaintiffs cannot rely on these complaints
to plead Whirlpool’s knowledge while ignoring their relevance to their own knowledge.”).)
Whirlpool’s knowledge is superior not because it read the publicly available online
forums, but because it received incident reports directly from CPSC. Plaintiffs have not alleged

-- 14 of 24 --

No. 23-1666 Tapply, et al. v. Whirlpool Corp. Page 15
that they received any similar notice from the government. Whirlpool thus had superior
knowledge of the Defect, so plaintiffs adequately pleaded a duty to disclose the Defect under
Michigan law. We reverse the district court’s decision to the contrary.
Illinois. Under Illinois law, “[i]n order to state a claim for fraudulent concealment, a
plaintiff must allege that the defendant concealed a material fact when he was under a duty to
disclose that fact to plaintiff.” Connick v. Suzuki Motor Co., 675 N.E.2d 584, 593 (Ill. 1996)
(citations omitted). The Illinois Supreme Court has held that a duty to disclose material facts
may arise out of several situations, such as a fiduciary or confidential relationship or a situation
where the defendant is in a position of “influence and superiority” over a plaintiff. Id. Illinois
courts have since clarified that, in addition to those two examples, concealing or suppressing
material facts can give rise to a duty to disclose. See, e.g., RWJ Mgmt. Co. v. BP Prods. N. Am.
Inc., No. 09 L 7891, 2012 WL 11140385, at *8–9 (Ill. Cir. Ct. May 2, 2012) (collecting cases).
“Mere silence in a transaction does not amount to fraud,” but if a party is silent while
suppressing material facts or deceiving another, a duty to disclose arises under Illinois law. Id.
These requirements are “fairly rigorous.” Miller v. William Chevrolet/GEO, Inc., 762
N.E.2d 1, 13 (Ill. App. Ct. 2001), as modified on denial of reh’g (Nov. 27, 2001). And courts
have disagreed regarding whether a safety risk imposes a duty to disclose under Illinois law.
Compare O’Connor v. Ford Motor Co., 567 F. Supp. 3d 915, 965 (N.D. Ill. 2021) (rejecting the
plaintiffs’ argument that Illinois law imposes a duty to disclose safety defects), with In re Gen.
Motors LLC Ignition Switch Litig., 257 F. Supp. 3d 372, 414 (S.D.N.Y. 2017) (discussing that at
least two other courts had found a duty to disclose safety defects under Illinois law), modified on
reconsideration, No. 14-MC-2543 (JMF), 2017 WL 3443623 (S.D.N.Y. Aug. 9, 2017).
Here, plaintiffs do not plausibly allege that Whirlpool had a duty to disclose under
Illinois law. Plaintiffs concede they lacked a confidential or fiduciary relationship with
Whirlpool but argue that Whirlpool concealed material facts. Their allegations do not, however,
specify how Whirlpool concealed those facts, seeming instead to rely on a few courts’ decisions
finding that a safety risk imposes a duty to disclose under Illinois common law.

-- 15 of 24 --

No. 23-1666 Tapply, et al. v. Whirlpool Corp. Page 16
Plaintiffs’ reliance on the “safety risk” duty to disclose argument lacks a strong basis in
Illinois law. The two cases cited in In re General Motors LLC Ignition Switch Litigation were
from district courts in New Jersey and Florida, and neither contained a thorough analysis of
Illinois law. See In re Volkswagen Timing Chain Prod. Liab. Litig., No. 16-CV-2765 , 2017 WL
1902160, at *20 (D.N.J. May 8, 2017); In re Takata Airbag Prods. Liab. Litig., No. 14-CV-
24009, 2017 WL 2406711, at *5 (S.D. Fla. June 1, 2017).
Accordingly, we affirm the district court’s determination that plaintiffs did not
sufficiently plead a duty to disclose the Defect under Illinois law.
Oklahoma. Under Oklahoma law, “a legal or equitable duty to disclose all material facts
may arise out of the situation of the parties, the nature of the subject matter of the contract, or the
particular circumstances surrounding the transaction.” Sutton v. David Stanley Chevrolet, Inc.,
475 P.3d 847, 854 (Okla. Oct. 21, 2020) (citation omitted). Such circumstances exist where the
“offending party created a false impression concerning material facts that was relied upon by the
other party to his detriment and to the benefit of the offending party.” Id. And, where someone
knows of a fact “peculiarly within [their] knowledge and the other person is not in a position to
discover [it,]” they have a duty to disclose that material fact. Seay v. Weaver, No. 19-CV-00474-
GKF-JFJ, 2021 WL 3686695, at *6 (N.D. Okla. July 23, 2021) (citing Oklahoma Uniform Jury
Instructions – Civil 18.5). The district court erred by requiring that plaintiffs allege a
confidential or fiduciary relationship to establish a duty to disclose.
Plaintiffs argue that Whirlpool created a false impression regarding the Defect.
Specifically, they argue that they each expected a two-part actuation system but received a
Range with the Defect—where the Range would actuate with a single motion. Because the
amended complaint plausibly alleges that Whirlpool had superior knowledge over the ordinary
consumer, plaintiffs plausibly alleged a duty to disclose under Oklahoma law. We reverse the
district court’s decision finding otherwise.
New Hampshire. Under New Hampshire law, “[a] duty to disclose arises when a seller
knows of a concealed defect which is unknown to the buyer and not capable of detection by the
buyer, provided the defect is dangerous to life or property.” Univ. Sys. of New Hampshire v. U.S.

-- 16 of 24 --

No. 23-1666 Tapply, et al. v. Whirlpool Corp. Page 17
Gypsum Co., 756 F. Supp. 640, 651 (D.N.H. 1991) (citing Ingaharro v. Blanchette, 440 A.2d
445, 447 (N.H. 1982)). The district court found that Whirlpool had no duty to disclose because
Whirlpool lacked the requisite knowledge. Because plaintiffs plausibly pleaded Whirlpool’s
knowledge, however, they plausibly pleaded Whirlpool’s duty to disclose under New Hampshire
law. Therefore, we reverse the district court’s decision dismissing plaintiffs’ claim under New
Hampshire law.
Nevada. Whirlpool did not move to dismiss plaintiffs’ Nevada fraud claim for lack of a
duty to disclose. (See Reply, R. 32, PageID 586–87.) Accordingly, plaintiffs’ Nevada claim will
be reinstated.
D.
Finally, we consider whether the district court erred by dismissing plaintiffs’ state
consumer protection claims. We address each state claim in turn.
Michigan. Plaintiffs allege Whirlpool violated the Michigan Consumer Protection Act,
Mich. Comp. Laws § 445.901, et seq.
Plaintiffs argue that they need not prove that Whirlpool knowingly made false statements
or had a duty to disclose the Defect. Whirlpool counters that, even if the Michigan Act does not
require Whirlpool’s knowledge of the defect, plaintiffs’ claim fails because “where the means of
knowledge regarding the truthfulness of the representation are available to the plaintiff,” a
plaintiff cannot maintain a claim. Evans v. Ameriquest Mortg. Co., No. 233115, 2003 WL
734169, at *3 (Mich. Ct. App. Mar. 4, 2003) (per curiam) (citation omitted).
For the reasons stated previously, Whirlpool’s argument lacks merit. Plaintiffs could not
discover the Defect prior to purchasing their Ranges through an online or visual inspection—the
Defect is purely physical, and plaintiffs plausibly alleged Whirlpool had superior knowledge.
Accordingly, plaintiffs plead plausible claims under the Michigan Act.
Illinois. Plaintiffs allege Whirlpool violated the Illinois Consumer Fraud and Deceptive
Business Practices Act, 815 Ill. Comp. Stat. § 505/1, et seq. While the parties argue about
whether the district court incorrectly analyzed the Illinois common law and statutory claims

-- 17 of 24 --

No. 23-1666 Tapply, et al. v. Whirlpool Corp. Page 18
together because of Federal Rule 9(b)’s heightened pleading requirements, the district court erred
for a separate reason. The district court incorrectly required plaintiffs to plead a duty to disclose
under the Illinois Act. The district court should have recognized that “[t]he [Illinois Act]
generally does require that sellers engaged in trade or commerce disclose any material facts to
consumers, regardless of the existence of a common law duty.” Miller, 762 N.E.2d at 14; Celex
Grp., Inc. v. Exec. Gallery, Inc., 877 F. Supp. 1114, 1130 (N.D. Ill. 1995).
Thus, while plaintiffs’ claim under Illinois common law fails for failure to plausibly
allege a duty to disclose, no such duty is required under the Illinois Act. They, therefore,
plausibly allege a claim under the Illinois Act.
Oklahoma. Plaintiffs allege Whirlpool violated the Oklahoma Consumer Protection Act,
Okla. Stat. tit. 5, §§ 751, et seq. Claims under the Oklahoma Act must plausibly allege pre-sale
knowledge. Okla. Stat. Ann. tit. 15, § 753 (prohibiting “[m]ak[ing] a false representation,
knowingly or with reason to know, as to the characteristics, ingredients, uses, benefits,
alterations, or quantities of the subject of a consumer transaction”). Because plaintiffs plausibly
allege Whirlpool’s pre-sale knowledge, they allege plausible claims under the Oklahoma Act.
New Hampshire. Plaintiffs allege Whirlpool violated the New Hampshire Consumer
Protection Act, N.H. Rev. Stat. Ann. § 358-A:1, et seq. New Hampshire’s consumer protection
statute requires pre-sale knowledge of a defect. See Kelton v. Hollis Ranch, LLC, 927 A.2d
1243, 1246 (N.H. 2007) (explaining that “[t]he plain language of” New Hampshire’s consumer-
protection statute “indicates that some element of knowledge on the part of the defendant is
required”). Because plaintiffs plausibly alleged pre-sale knowledge, they plausibly allege claims
under the New Hampshire Act.
Nevada. Plaintiffs allege Whirlpool violated the Nevada Deceptive Trade Practices Act,
Nev. Rev. Stat. § 598.0999, et seq. Plaintiffs charge that Whirlpool did not argue, and the
district court did not hold, that their Nevada statutory claims failed for a lack of duty to disclose.
As such, they reiterate that their Nevada statutory claim should be reinstated. Because plaintiffs
plausibly alleged pre-sale knowledge, they plausibly allege claims under the Act.

-- 18 of 24 --

No. 23-1666 Tapply, et al. v. Whirlpool Corp. Page 19
III.
For the foregoing reasons, we affirm in part and reverse in part the district court’s order
granting Whirlpool’s motion to dismiss plaintiffs’ amended complaint. Plaintiffs’ common law
fraud and consumer protection claims—aside from plaintiffs’ Illinois common law fraud claim—
shall be reinstated.

-- 19 of 24 --

No. 23-1666 Tapply, et al. v. Whirlpool Corp. Page 20
_________________
DISSENT
_________________
LARSEN, Circuit Judge, dissenting. I agree with the majority’s conclusion that the
named plaintiffs have Article III standing to pursue their claims against Whirlpool. I disagree,
however, that plaintiffs have sufficiently alleged that Whirlpool had knowledge of the defect.
Because the lack of knowledge dooms plaintiffs’ claims, I would affirm the district court in its
entirety. I respectfully dissent.
I.
First, standing. Article III allows courts to decide only “Cases” and “Controversies.”
U.S. Const., art III, § 2. For standing, “a plaintiff must show (i) that he suffered an injury in fact
that is concrete, particularized, and actual or imminent; (ii) that the injury was likely caused by
the defendant; and (iii) that the injury would likely be redressed by judicial relief.” TransUnion
LLC v. Ramirez, 594 U.S. 413, 423 (2021).
The question here focuses on the first standing requirement—injury in fact. To satisfy
this requirement, the injury must be “concrete—that is, real, and not abstract.” Id. at 424
(citation omitted). “Requiring a plaintiff to demonstrate a concrete and particularized injury
caused by the defendant and redressable by the court ensures that federal courts decide only the
rights of individuals, and that federal courts exercise their proper function in a limited and
separate government.” Id. at 423 (citations omitted). “[T]raditional tangible harms, such as
physical harms and monetary harms,” suffice. Id. at 425. Where a party seeks monetary relief,
such as damages, “the mere risk of future harm, standing alone, cannot qualify as a concrete
harm.” Id. at 436.
At this stage in the case, “we take as true the well-pleaded allegations in the complaint
and ask whether plaintiffs plausibly alleged their standing to sue.” Universal Life Church
Monastery Storehouse v. Nabors, 35 F.4th 1021, 1031 (6th Cir. 2022). The named plaintiffs here
have each alleged that the ranges they purchased have a defect—that is, they turn on
inadvertently. Each of the named plaintiffs experienced the unintended actuation. They allege

-- 20 of 24 --

No. 23-1666 Tapply, et al. v. Whirlpool Corp. Page 21
that the unintended actuations resulted in the ranges omitting gas into their homes without
warning and, in one instance, causing a fire. As such, the alleged defect in the ranges manifested
for each of the named plaintiffs. Those allegations are sufficient to confer standing. See Speerly
v. Gen. Motors, LLC, 143 F.4th 306, 315 (6th Cir. 2025) (en banc).
II.
Although I agree with the majority’s conclusion that the plaintiffs have standing, I depart
from the majority opinion on the question of Whirlpool’s knowledge. Plaintiffs’ claims for fraud
by omission, and for violation of the relevant state consumer protection statutes, cannot succeed
unless Whirlpool had knowledge of the defect. Plaintiffs have failed to adequately allege
Whirlpool’s knowledge, and that is fatal to plaintiffs’ complaint.1
Generally, when alleging fraud, “a party must state with particularity the circumstances
constituting fraud or mistake.” Fed. R. Civ. P. 9(b). But “[m]alice, intent, knowledge, and other
conditions of a person’s mind may be alleged generally.” Id. Even under generalized pleading
rules, however, plaintiffs’ amended complaint fails to adequately plead Whirlpool’s knowledge
of the defect.
In Smith v. General Motors, LLC, we examined whether General Motors (GM) had
knowledge of a defect that led to cracked dashboards in vehicles that it had sold. 988 F.3d 873,
885 (6th Cir. 2021). There, “[p]laintiffs only offered ‘information and belief’ that GM knew of
the complaints.” Id. at 885. We held that such allegations were insufficient because there was
no factual basis for them. Id. According to the complaint in Smith, GM should have been aware
of a flood of customer complaints, which “came as online posts on car websites . . . and
complaints on the [National Highway Traffic Safety Administration (NHTSA)] database about
the cracks, including 239 NHTSA safety complaints related to the cracked dashboards.” Id. We
held that this was insufficient to allege GM’s knowledge. The allegations were too speculative
1The district court also dismissed plaintiffs’ claims for violation of the Magnuson-Moss Warranty Act, for
breach of express and implied warranty, and for unjust enrichment. Plaintiffs don’t challenge the dismissal of those
claims on appeal. See Appellants Br. at 20 (“Plaintiffs appeal the district court’s dismissal of their claims for
common law fraud by omission and the violation of several state consumer protections statutes.”). So they have
abandoned them. See Castellon-Vogel v. Int’l Paper Co., 829 F. App’x 100, 102 (6th Cir. 2020).

-- 21 of 24 --

No. 23-1666 Tapply, et al. v. Whirlpool Corp. Page 22
to show knowledge because they would have been “a blip” on GM’s “complaints-and-repairs
radar considering the millions of . . . cars in use.” Id. (citation omitted). “[N]othing show[ed]
that the complaints about GM’s cracked dashboards were frequent enough that they were not lost
in a sea of complaints and repairs amassing by the dozens each day.” Id. (citation omitted). So,
“[w]ithout supporting facts that GM engaged with or received complaints about the defective
dashboard and its safety risk, the consumer complaints [were] insufficient to allege that GM
knew about the defective dashboard under the 12(b)(6) pleading standard.” Id.
The allegations here are even less substantial than those found insufficient in Smith.
Plaintiffs attempt to show Whirlpool’s knowledge through two categories of consumer
complaints; but whether taken alone or together, they fail to adequately allege knowledge. First,
according to the amended complaint, “[c]onsumers have submitted numerous incident reports
about the Defect to the U.S. Consumer Product Safety Commission (‘CPSC’).” R. 13, Amended
Complaint, PageID 126. The complaint then provides eight examples. Two of those reports
were made in 2016, one in 2017, two in 2018, two in 2019, and one in 2020. Eight complaints
over a five-year span are not enough to have put Whirlpool on notice by the time the last plaintiff
bought her range in 2021. And it’s even more true that three complaints over two years could
not have been enough to put Whirlpool on notice when the first plaintiff bought her range in
2018.
Plaintiffs next identify online consumer complaints, which they allege were submitted
“directly to Whirlpool via reviews posted to its website.” Id. at 129. But like the CPSC
complaints, only a handful came before the alleged purchases here.2 Our holding in Smith
compels the conclusion that the handful of consumer complaints alleged here fall far short of
showing Whirlpool’s knowledge of the defect. In Smith, we deemed 239 complaints to be a
“blip” on GM’s radar, given the millions of GM cars in use. 988 F.3d at 885. Here, plaintiffs
offer only a few complaints that allegedly should have put Whirlpool on notice that several
models of the ranges they made were defective.
2The amended complaint also alleges that “certified Whirlpool appliance technicians have observed
unintentional actuation in Ranges in the field.” R. 13, Amended Complaint, PageID 134. Plaintiffs have abandoned
any such reliance on that allegation before this court by not addressing it. So that leaves only the CPSC complaints
and the complaints posted to Whirlpool websites.

-- 22 of 24 --

No. 23-1666 Tapply, et al. v. Whirlpool Corp. Page 23
Further, as in Smith, there is no plausible allegation here that Whirlpool engaged with the
alleged consumer complaints. The closest the complaint comes is the allegation that the CPSC
“transmitted all th[e] complaints to” Whirlpool. R. 13, Amended Complaint, PageID 126. But
without further explanation of the process by which Whirlpool examined those few complaints,
the allegations are insufficient to establish that Whirlpool engaged with or actually knew of the
alleged defect, such that it thought it needed to do something about it. Smith, 988 F.3d at 885.
Accordingly, plaintiffs have failed to plausibly allege that Whirlpool had sufficient knowledge of
the alleged defect.
The majority opinion creates a new rule in an attempt to distinguish Smith: “a plaintiff
plausibly alleges that a manufacturer knew of the alleged product defect when a government
agency, required by law to transmit consumer complaints about a safety defect to a manufacturer,
indeed transmits those complaints to the manufacturer.” Maj. Op. at 10–11. That is a rule
without a limitation. Is one consumer complaint sufficient to give a company the size of
Whirlpool knowledge that it must act to investigate and fix a defect in a product or else face a
potential class-action lawsuit? If not, then why is eight (at most) sufficient? What about when
multiple product models are involved, as here? The amended complaint lists sixteen models and
purports to include “all other models (discontinued or still available for sale) containing
substantially similar front-mounted burner controls.” R. 13, Amended Complaint, PageID 119.
Even if we disregard the dates of the complaints and countenance all eight provided in the
pleading, they encompass only four of the sixteen models identified in plaintiffs’ amended
complaint, with five of the eight complaints pertaining to the same model.3 What’s more, five of
the complaints pertain to the range model purchased by two of the named plaintiffs; the rest of
the complaints aren’t related to the models purchased by the remaining plaintiffs at all. The
majority opinion offers no case to show that such a miniscule number of complaints, even if
transmitted directly to Whirlpool, is sufficient to put a company of this size on notice that it must
investigate and fix an alleged defect in sixteen or more different range models.
3Four of the complaints reference Model No. WGG745S0FS02, while one references Model No.
WGG745S0FS. The amended complaint lists only the former as among the models at issue, so I proceed under the
assumption that they are the same. Even if not, the point remains the same.

-- 23 of 24 --

No. 23-1666 Tapply, et al. v. Whirlpool Corp. Page 24
The majority opinion also faults Whirlpool for not raising its “number-of-complaints
based argument” in its motion to dismiss. Maj. Op. at 13. But Whirlpool’s brief in support of
the issue at least touched on that issue. See R. 26, PageID 489 (“Plaintiffs fail to plausibly allege
Whirlpool’s pre-sale knowledge of a safety defect about which it did not warn.”); id. (“[T]o
establish these claims, Plaintiffs must plead Whirlpool’s pre-sale knowledge of the defect.”).
And, in any event, the district court expressly discussed this issue in its opinion and order. R. 40,
Dist. Ct. Order, PageID 726–27. That is sufficient to make the issue live for our review. See
Raines v. United States, 898 F.3d 680, 687 (6th Cir. 2018) (“There can be no forfeiture where the
district court, despite a party’s failure to press an argument, nevertheless addressed the merits on
the issue.” (cleaned up)).
Plaintiffs’ failure to adequately allege knowledge is fatal to their claims for fraud by
omission and violation of the relevant state consumer protection statutes. For that reason,
I would affirm the district court’s grant of the motion to dismiss in Whirlpool’s favor in its
entirety. I respectfully dissent.

-- 24 of 24 --