United States: San Francisco vs. The Monster (aka Federal Regulation)

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.

This article is presented for informational purposes only and is not intended to constitute legal advice.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions