On July 18, a state court judge in Saginaw, Michigan, refused to recertify a 2,500-member class alleging that contamination by dioxin released by The Dow Chemical Company decreased property values downstream. The judge cited the U.S. Supreme Court's landmark decision in June in Dukes v. Wal-Mart.
Douglas Kurtenbach and Nader Boulos of Kirkland & Ellis led for Dow, along with Dickinson Wright and Braun Kendrick Finkbeiner. Kurtenbach called this the first decision to apply Dukes in an environmental mass tort.
The same court originally certified the class in 2005 and reconfirmed certification after a 2009 state ruling on certification standards. But in light of the Dukes decision, Dow's lawyers at Kirkland asked the judge to reconsider.
Visiting judge Leopold Borrello declined to recertify the class, finding that plaintiffs' claims had too little in common for a class to be practical. Even if Dow did negligently release dioxin into the floodplain, he wrote, the contamination and damage was individualized. The same was true for related nuisance claims, he concluded.
At press time the court had not yet ruled on a motion for reconsideration filed by property holders.
For The Dow Plaintiffs
Stueve Siegel Hanson: Todd McGuire and Norman Siegel. (They are in Kansas City, Missouri.) The firm was lead counsel.
Spencer Fane Britt & Browne: Carl Helmstetter and Michael Saunders. (They are in Kansas City, Missouri.) The firm was lead counsel.
The Woody Law Firm: Teresa Woody. (She is in Kansas City, Missouri.) The firm was lead counsel.
Trogan & Trogan: Bruce Trogan. (He is in Saginaw, Michigan.) The firm was lead counsel.
For Defendant The Dow Chemical Company (Midland, Michigan)
In-House: lead counsel corporate legal affairs Scott Scarpelli.
Kirkland & Ellis: Nader Boulos and Douglas Kurtenbach. (They are in Chicago.) The firm was lead counsel; the two lawyers have represented Dow for more than 20 years in mass tort and class litigation matters.
Dickinson Wright: Phillip DeRosier and Kathleen Lang. (They are in Detroit.) The firm did not comment on their role.
Braun Kendrick Finkbeiner: John Decker. (He is in Saginaw, Michigan.) The firm was local counsel.
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