The Sixth Circuit handed plaintiffs greater ability to obtain class certification in an opinion handed down on July 16, 2018. In Martin v. Behr Dayton Thermal Products, LLC, a three judge panel for the Sixth Circuit adopted the “broad view” of Fed. R. Civ. P. 23(c)(4). Martin No. 17-3663, slip op. at 8 (6th Cir. July 16, 2018). In so doing, the three judge panel aligned the Sixth Circuit with the Second, Fourth, Seventh, and Ninth Circuits in following the “broad view.” Id. at 7. The decision in this case provides Sixth Circuit litigators with another avenue when seeking class certification.
This case was first filed back in 2008 by thirty named plaintiffs in the McCook Field neighborhood of Dayton. Id. at 2. The plaintiffs’ allege that the groundwater beneath their properties is contaminated with carcinogenic volatile organic compounds (VOCs), as a result of the defendants releasing chemicals from their nearby facilities. Id. at 2-3. The chemicals seeped from two properties, forming two separate “plumes” that converged south of the facilities and ultimately migrated to the area beneath the plaintiffs’ properties. Id. at 3. The plaintiffs originally filed suit in the Court of Common Pleas for Montgomery County, but Chrysler removed the case to the Southern District of Ohio. Id. at 4.
The plaintiffs sought to certify a class as to liability for private nuisance, negligence, negligence per se, strict liability, and unjust enrichment under Rule 23(b)(3). Id. The District Court determined that the plaintiffs could not meet Rule 23(b)(3)’s predominance requirement due to injury-in-fact and causation law in Ohio. Id. The plaintiffs alternatively sought to certify seven common issues under Rule 23(c)(4), which the District Court did grant. Id. at 5. Both parties appealed the order and the Sixth Circuit heard argument on the Rule 23(c)(4) issue. Id. at 5-6.
Rule 23(c)(4) states, “[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). Under the “broad view” of Rule 23(c)(4) the court applies the predominance and superiority prongs of Rule 23(b)(3) “after common issues have been identified for class treatment.” Martin, slip op. 17-3663 at 7. This view allows courts to apply Rule 23(c)(4) even if predominance has not been established for the entire cause of action. Id. The Sixth Circuit argued that the “narrow view,” which would require predominance for the entire class, “would undercut the purpose of Rule 23(c)(4).” Id. at 10.
Essentially, this rule allows courts to isolate common issues and proceed with class treatment, even if common questions do not predominate over individual questions so that class certification for the entire action would be appropriate. Id. at 7 (citing Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir. 1996)). The Court did note that the superiority requirement of Rule 23(b)(3) would serve as a “backstop” to prevent minor or insignificant issues from being certified. Id. at 9.
As an example, in this case the District Court denied class certification for causation under Rule 23(b)(3), which would have allowed plaintiffs to establish the cause of the injuries to the plaintiffs by one common showing of proof, as opposed to each individual plaintiff offering separate and varying pieces of evidence that his or her injury had been caused by the defendants’ acts. Rule 23(c)(4) allows the court to certify particular issues that are common to the whole class, such as “[w]hether Defendants negligently failed to investigate and remediate the contamination at and flowing from their respective Facilities.” Id. at 5. The plaintiffs will now be able to make one evidentiary showing and gain resolution on that question, thus allowing them to use that ruling in later trials, even if some additional individualized evidence on causation is necessary.
The Sixth Circuit’s decision in this case will expand the ability of plaintiffs to gain class certification in the course of litigation. A hopeful class action plaintiffs failing to gain class certification under Rule 23(b)(3) will have greater access to the courts through the use of Rule 23(c)(4) as an alternative. While plaintiffs will still favor certifying a liability class under Rule 23(b)(3), this decision does provide a worthy consolation prize to plaintiffs. Instead of resting all hope on class certification, plaintiffs in the Sixth Circuit will be able to resolve common issues that will go a long way to promoting settlement or aiding their cases at trial.
This decision will also give courts the ability to narrow down issues until it finds issues common enough to satisfy predominance and justify class certification. Defendants will want to be mindful of how particularized the questions become, however. Questions that are too minor or insignificant may give defendants the opportunity to defeat an attempt to certify a class under Rule 23(c)(4) since it simply will not be an efficient use of the court’s time.
While this is not a seismic shift in class action litigation, it certainly hands plaintiffs a useful weapon when fighting for class certification.