We previously reported on Powell v. Tosh, No. 5:09-CV-121-R (W.D. Ky. Oct. 12, 2011), a case in which the U.S. District Court for the Western District of Kentucky certified a class action filed on behalf of a group of homeowners for damages allegedly suffered as a result of odors migrating from a nearby hog farm.   As Suzanne suggested in her previous post, Powell quite possibly may have been the first decision granting class certification in an environmental toxic tort case since the Supreme Court’s June 2011 decision in Wal-Mart v. Dukes, 131 S. Ct. 2541 (2011) – a decision that many speculated would be the death knell to class actions in this arena. 

But no longer.  On December 21, 2011, the Powell court, on its own initiative, entered an order vacating its previous class certification ruling, and taking the matter under further advisement.  It is unclear to us whether the court was persuaded by defendants’ appeal papers filed with the Sixth Circuit, urging for the reversal of the class certification decision on a number of legal grounds, or perhaps an indication that any prior hopes for settlement have been dashed.  But whatever the reason, it will be interesting to see what the court does from here.  Plaintiffs’ counsel, for their part, are no doubt worried, and are now seeking leave to file amended class certification papers “to clarify [their] arguments.”

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