In an unpublished opinion, Sutton v. Hoffmann-La Roche, Inc., No. A-5545-18T3 (N.J. App. Div. May 27, 2020), the Appellate Division of the New Jersey Superior Court recently affirmed a lower court’s certification of a class seeking damages due to lost property value premised upon the existence of contaminated groundwater.  Certification of similar homeowner classes has been illusive in federal courts, and thus of particular note here, the Appellate Division made clear that the while the language of New Jersey’s class certification rule is “textually similar” to the federal rule, New Jersey’s interpretation of its own rule is “far more liberal and permissive toward class certification.” Op. at 30, n. 6. Although the local nature of the case most likely made the Class Action Fairness Act inapplicable, this decision is further evidence of the importance to defendants in class action litigation of exercising removal jurisdiction whenever possible. Read More »

Share | Email| Comments|  Topics: CAFA, Certification, Class Actions, Contamination, Damages, Groundwater, Negligence, New Jersey, Nuisance, Property Value, Residential, Trespass

Rule 23(c)(4) of the Federal Rules of Civil Procedure provides that, “[w]hen appropriate, an action may be brought or maintained as a class action with respect to particular issues.” Fed. R. Civ. P. 23(c)(4). Rule 23(b)(3), on the other hand, provides that a class action may be maintained only where “the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” R. 23(b)(3). The Second, Fourth, Seventh, and Ninth Circuit have adopted a “broad view” of class certification, permitting a district court to certify a class on particular issues under Federal Rule 23(c)(4), even where the traditional predominance requirements of Rule 23(b)(3) have not been met for the case as a whole. Only two circuits, the Fifth and Eleventh, ascribe to the more “narrow view” in which Rule 23(b)(3)’s predominance requirement is applied to prevent district courts from certifying particular issues under Rule 23(c)(4), without certifying an entire claim. In a recent case brought my homeowners alleging contamination to groundwater, Martin v. Behr Dayton Thermal Products LLC et al., No. 17-3663, --- F.3d ---, 2018 WL 3421711 (6^th Cir. July 18, 2018), the Sixth Circuit has now joined the majority of circuits addressing this issue by endorsing the “broad view” of issue-based class certification. Read More »

Share | Email| Comments|  Topics: CERCLA, Certification, Class Actions, Contamination, Damages, Drinking Water, Federal Procedure, Groundwater, Sixth Circuit, Toxic Torts, Water

Last week, the United States Court of Appeals for the Eighth Circuit affirmed a district court’s ruling to decertify a class action filed by landowners for releases from Exxon’s 850-mile Pegasus Pipeline that crosses four states from Texas to Illinois.  The case, Webb, et al. v. Exxon Mobil Corp., et al., Dkt. No. 15-2879 (8th Cir., May 11, 2017), was filed by a group of landowners who claimed that Exxon materially breached the terms of their right-of-way easement agreements by allegedly failing to inspect, maintain, repair, and replace the pipeline, which was originally installed in the mid-1940s.  At various times since the 1980s, the pipeline had releases in Texas, Arkansas, and Missouri, which the plaintiffs claim resulted in damage to their properties.  The plaintiffs sought to rescind their right-of-way easement agreements and force Exxon to remove or replace the entire pipeline, or in the alternative, to be paid damages for breach of contract and diminution in property value.  Read More »

Share | Email| Comments|  Topics: Arkansas, Certification, Class Actions, Cleanup, Contamination, Damages, Eighth Circuit, Energy, Federal Procedure, Illinois, Missouri, Oil and Gas, Pipelines, Property Value, Texas

This week, in the case of Smith v. ConocoPhillips Pipe Line Co., No. 14-2191 (8th Cir.  Sept. 15, 2015), the Eighth Circuit overturned a district court’s grant of a certification to a class comprised of property owners who alleged that the contamination of a neighboring property, and their fear of its spread, was a nuisance.  The Eighth Circuit held that the plaintiffs did not provide evidence that their own properties were contaminated and thus denied class certification based on the plaintiffs’ failure to demonstrate a common injury. Read More »

Share | Email| Comments|  Topics: Certification, Class Actions, Contamination, Eighth Circuit, Medical Monitoring, Negligence, Nuisance, Oil and Gas, Real Estate, Residential, Toxic Torts

Since the United States Supreme Court decided Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2451 (2011), plaintiffs in contamination cases have struggled to meet the raised bar for class certification.  And that bar was certainly not lowered by the Seventh Circuit in its decision in Parko v. Shell Oil Co., Nos. 13-8023 & 13-8024 (7^th Cir. Jan 17, 2014).  Parko involved a putative class comprised of property owners in the town of Roxana, Illinois, who claimed that their property values had been diminished by benzene contamination of the groundwater from an adjacent oil refinery which had been in operation for nearly 100 years.  In checking off the certification requirements, the district court held that the question of whether the multiple defendants who owned and operated the refinery during the preceding 90 plus years failed to “contain petroleum byproduct [resulting] in contamination to Roxana property” predominated.   The Seventh Circuit panel unanimously disagreed.  Judge Posner, writing for the Court, described the opinion as necessary for clarification of a trial court’s responsibility to conduct a “rigorous analysis” of whether common issues predominate; in doing so, he did not hesitate to take the district judge to task for “treat[ing] predominance as a pleading requirement” rather than an evidentiary one.  Read More »

Share | Email| Comments|  Topics: Causation, Certification, Class Actions, Contamination, Dukes, Expert Witness, Illinois, Procedure, Real Estate, Residential, Seventh Circuit, Toxic Torts, Water

Both before and after the U.S. Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2451 (2011), removal to federal court under the Class Action Fairness Act (“CAFA”) was a key tool in the arsenal employed by class action defendants, as federal courts have become increasingly more skeptical of certifying classes in toxic tort class actions.  But with many state court procedural rules patterned after their federal counterparts, federal trends can influence state courts, and the recent Louisiana Supreme Court decision in Price v. Roy R. Martin, 2011-C-0853 (Dec. 6, 2011), is a perfect example. Read More »

Share | Email| Comments|  Topics: Certification, Class Actions, Contamination, Decisions of Note, Dukes, Louisiana, Real Estate, Toxic Torts