Coming off of Memorial Day weekend we pause to remember all of the American men and women who have died while serving in the military and to thank them for their sacrifice. We also hope everyone had a relaxing and enjoyable holiday weekend. It certainly felt like the start of summer in the Mid-Atlantic area. Pools and beaches were packed, grills were fired up, and cold beverages were flowing. All that fun makes it difficult to get back to work, but here we are and so here is another good defense decision we wanted to share.
We are taking a slight detour away from our traditional drug and device cases to talk about a recent class certification ruling by the Eighth Circuit. While notably diminishing in number over the last two decades, putative class actions are still filed in the drug and device world – usually medical monitoring or economic loss only suits — so we keep our eye out for any decisions that would help to thwart these attempts to abuse (in our opinion) Federal Rule 23.
In Ebert v. General Mills, Inc., No. 15-1735, slip op. (8th Cir. May 20, 2016), plaintiffs filed a putative class action environmental-contamination lawsuit. Plaintiffs allege that trichloroethylene (“TCE”) was released into the ground and environment at a former General Mills facility in their neighborhood. Id. at 2. Since 1984, General Mills has been participating in clean-up and remediation efforts in the neighborhood. While the details aren’t important for our purposes, it is noteworthy that as part of those efforts, differing levels of TCE were found on different properties and different properties underwent different remediation efforts. Id. at 3.
The class was defined as all residential property owners in a certain area and was limited to a request for injunctive relief – a Rule 23(b)(3) class action — and monetary damages for property damage only – a Rule 23(b)(2) class action. Personal injury claims were excluded. Id. at 3-4. The district court then did some judicial slicing and dicing of the case to make it satisfy (not really) Rule 23’s requirements. It bifurcated the case into two phases. The first phase would assess liability in the context of the injunctive relief claim and the second phase would then decide damages if liability was found in phase one. Id. at 5.
The first step in class certification is satisfying the Rule 23(a) requirements of numerosity, commonality, typicality, and adequacy of representation. After that, there are additional requirements depending on the type of class sought to be certified. So, for a Rule 23(b)(3) class, such as the damages class sought in Ebert, not only must there be common issues, the common issues must predominate over issues affecting individual members. And, “the predominance criterion is far more demanding” than the commonality requirement. Id. at 8.
This is where the Eighth Circuit found the district court abused its discretion – in the slicing and dicing. Artful pleading can almost always articulate common questions. Id.at 7. “Here, by bifurcating the case and narrowing the question for which certification was sought, the district court limited the issues and essentially manufactured a case that would satisfy the Rule 23(b)(3) predominance inquiry.” Id. at 9. It’s not the court’s place to “manufacture” the claim. If the court had to carve up the case to find a common issue on which to certify, it seems obvious that non-common issues must predominate. The Eighth Circuit lists all of the individualized questions that need to be resolved for both liability and damages. For instance, on liability there would need to be a determination as to whether and/or to what extent the contamination on a particular property is attributable to the defendant. Id. We aren’t environmental lawyers and won’t go into all the various inquiries that would be necessary for each property, but the overall impact of the court’s decision is that even if some determinations can be made on a class-wide basis – if the common question is artificial (“manufactured”) or only preliminary, there are no efficiencies gained by certifying the class because essential, non-common issues “must be adjudicated to resolve the heart of the matter.”Id. at 10. This is great limiting language for attempts to bring issue classes (Rule 23(c)(4)).
The Eighth Circuit also found the Rule 23(b)(2) class could not be maintained due to lack of cohesiveness – based on many of the same reasons the Rule 23(b)(3) class failed for lack of predominance. Therefore, severing this claim from the monetary damages claims could not save it. There is no one single injunctive relief that would resolve the claims of all plaintiffs. Each property would require a unique remediation effort. While the district court thought it was premature to consider those distinctions, the appellate court was clear that such distinctions matter “at this stage.” Id. at 12. Again, the district court “artificially narrowed” the issue to liability in a very broad sense – but because that won’t end the inquiry, no efficiencies are gained by maintaining this as a class action.
The case is being remanded with directions for the district court to “revisit” the issues in conformity with the appellate decision – in other words, with an instruction to not artificially manufacture a class action where one doesn’t exist.