From a novel effort to hold a banana grower accountable for environmental damage abroad to more traditional but still controversial claims over alleged contamination from a Superfund site at people's homes, experts say there are five interesting environmental class actions to keep an eye on.
Environmental class actions are notoriously difficult to predict, according to Douglas Henderson, a partner at Troutman Sanders LLP. It's an unsettled area of law, he said, because if you look at class action requirements like commonality and predominance in the environmental context, people probably are not similarly situated.
"One person is dying of cancer and lives near an industrial establishment and claims to be sick from it [but] may also have smoked, may be overweight and the house may be a different distance than other people in the class. All those things are different, which suggests a class would not be an effective way to resolve claims," Henderson said.
And John S. Guttmann, a principal at Beveridge & Diamond PC, said in the era following the U.S. Supreme Court's ruling on class actions in Wal-Mart v. Dukes, courts are wrestling with the question of how much proof of common issues is necessary for a class to be appropriate.
"It's going to be another five years, I think, before there's been a sufficient body of case law in the federal district courts that makes its way to the federal appellate courts, as well as in state courts, to really establish and apply the basic holding of Wal-Mart v. Dukes in the environmental context," Guttmann said.
Here are four environmental class actions and one very similar but unique suit to watch:
Ebert v. General Mills
In February, a Minnesota federal judge certified a class of property owners who accuse General Mills Inc. of allowing carcinogens from a Superfund site to seep into a nearby Minneapolis neighborhood, saying the plaintiffs all sought the same remedy for same alleged damages.
In evaluating the various criteria for certifying the class, U.S. District Judge Donovan W. Frank determined that many of General Mills' challenges to the plaintiffs' motion were premature, including that the proposed class boundary wouldn't take into consideration other potential sources of contamination, and that there may be potentially differing levels of contamination for each class member.
General Mills has appealed Judge Frank's decision to grant class certification to the Eighth Circuit.
"The judge concluded that there was a common issue for vapor intrusion. That shows that certain judges will interpret class actions differently on the commonality claim. In a pure matter of technology and engineering and science, folks may be exposed at different levels, but this judge concluded that a class was warranted," Henderson said. "It shows how difficult it is to come up with any general rules for environmental class actions."
The plaintiffs are represented by Edward J. Manzke and Shawn M. Collins of The Collins Law Firm PC, Michael D. Hayes and Norman B. Berger of Varga Berger Ledsky Hayes & Casey, Anne T. Regan and J. Gordon Rudd Jr. of Zimmerman Reed PLLP and Mark H. Thieroff of Siegel Brill PA.
General Mills is represented by Benjamin W. Hulse, Corey L. Gordon, Emily A. Ambrose and Jerry W. Blackwell of Blackwell Burke PA, Jeffrey Fowler of O'Melveny & Myers LLP, Aaron Daniel Van Oort of Faegre Baker Daniels and Mark J. Carpenter of Carpenter Law Firm PLLC.
The case is Karl Ebert et al. v. General Mills Inc., case number 0:13-cv-03341, in the U.S. District Court for the District of Minnesota. The appeal of class certification is Karl Ebert et al v. General Mills Inc., case number 15-1735, in the U.S. Court of Appeals for the Eighth Circuit.
Campbell v. Chiquita
In this proposed class action, filed in April, the plaintiff alleges that Chiquita Brands International Inc. improperly markets its bananas as though they are farmed in an ecologically friendly and otherwise sustainable manner.
Among Chiquita's "strict standards" include practices that "conserve wildlife habitats, national resources and promote community well being," the complaint said.
But some of Chiquita's bananas are grown in impoverished areas of Guatemala and many crops allegedly are produced in a way that destroys natural ecosystems, contaminates the drinking water of local communities and poisons local residents, points that Chiquita allegedly failed to disclose in its marketing materials and at the point of sale, according to the complaint.
Peter Seley, a partner at Gibson Dunn and co-chair of its environmental litigation and mass torts practice group, said the case is interesting because of the theory the plaintiffs are using.
"They are trying to use a line of cases in California about affirmative misrepresentations on consumer packaging and apply it to omissions. It creates an impossibly broad disclosure problem," Seley said. "How could companies possibly disclose everything that some consumer, somewhere, might subjectively consider material?"
That approach could make almost anything subject to disclosure, he said, from a company's suppliers practices to campaign contributions to its carbon footprint.
Campbell is represented by Elaine T. Byszewski, Steve W. Berman and Tyler S. Weaver of Hagens Berman Sobol Shapiro LLP.
Counsel information for Chiquita was not immediately available.
The case is Tania Campbell v. Chiquita Brands International Inc., case number 2:15-cv-02860, in the U.S. District Court for the Central District of California.
Allen v. Boeing
In April, the Ninth Circuit said a suit targeting The Boeing Co. and its environmental remediation contractor Landau Associates Inc. over alleged groundwater contamination from a Washington-based plant belongs in federal court, reversing an order sending the dispute to a state court.
In a 2-1 decision, the Ninth Circuit rejected U.S. District Judge Ricardo S. Martinez's finding that a suit brought by the owners and residents of allegedly polluted land falls within the Class Action Fairness Act's local single event exception to federal jurisdiction, breaking with other circuit courts' interpretation of CAFA's terms.
The plaintiffs claim Boeing discharged hazardous chemicals into the groundwater and contaminated their properties for more than 40 years from its Auburn aircraft parts manufacturing plant, and that cleanup efforts with Landau only contributed to further movement of the pollution onto their properties.
Boeing is represented in-house by Michael S. Paisner as well as Devin A. DeBacker and Michael F. Williams of Kirkland & Ellis LLP and Jeffrey M. Hanson of Perkins Coie LLP.
The plaintiffs are represented by David N. Bigelow, Robert W. Finnerty and Thomas V. Girardi of Girardi & Keese, Thomas Vertetis of Pfau Cochran Vertetis Amala PLLC, and James S. Rogers of the Law Offices of James S. Rogers.
The case is Jocelyn Allen v. The Boeing Co. et al., case number 2:14-cv-00596, in the U.S. District Court for the Western District of Washington.
Modern Holdings v. Corning
In a recently filed third amended complaint, plaintiffs allege Corning Inc. and Philips Electronics North America Corp. are responsible for damages stemming from operations at a glass and bulb manufacturing facility in Danville, Kentucky.
"Hazardous substances were used or generated by the defendants during their manufacturing process, and were spread throughout the site and throughout Danville by virtue of the defendants' negligent and/or intentional actions," the complaint said.
Corning and Philips unsuccessfully sought to sink the class allegations, arguing the proposed class is not ascertainable.
First, the companies contended that the proposed class includes people who may ultimately lack any actual injury. Second, they argued that the definition hinges on a "fail-safe" definition that requires a merits-based analysis before membership can be determined.
But U.S. District Judge Gregory F. Van Tatenhove found that the plaintiffs' proposed definition is, "at least on its face," readily ascertainable by reference to objective criteria. The judge said discovery is needed to further clarify the question.
The plaintiffs are represented by Richard A. Getty, Jessica Winters and Evan M. Rice of The Getty Law Group PLLC.
Philips is represented by Brian Johnson of Dickinson Wright PLLC.
Corning is represented by Mark Durbin of Barnes & Thornburg LLP and M. Stephen Pitt, George J. Miller. and George L. Seay Jr. of Wyatt Tarrant & Combs LLP.
The case is Modern Holdings LLC et al. v. Corning Inc. et al., case number 5:13-cv-00405, in the U.S. District Court for the Eastern District of Kentucky.
Vermont v. Atlantic Richfield
Vermont's attorney general and several plaintiffs firms hired on a contingency basis in June sued a slew of top U.S. gasoline refiners, including Chevron USA Inc. and Exxon Mobil Corp., for methyl tertiary-butyl ether groundwater contamination in the state, joining the torrent of litigation across the country over the controversial fuel additive.
The complaint, lodged in Vermont state court, accuses the more than two dozen defendants of peddling gasoline laced with MTBE, despite knowing that the additive posed an extraordinary threat to water supplies.
While not a class action, Guttmann said states are increasingly teaming up with plaintiffs firms, which he said are looking for ways to handle multiple-plaintiff suits but avoid the Wal-Mart v. Dukes analysis.
"It's kind of a different route to litigate all those private lawsuits collectively in a single lawsuit," Guttmann said. "The harder it is to get a class certified, the more likely it is that there will be additional claims of this sort as a vehicle for getting relief on behalf of multiple plaintiffs."
Vermont is represented by Baron & Budd PC, Weitz & Luxenberg PC and Pawa Law Group PC.
The case is State of Vermont v. Atlantic Richfield Co. et al., case number 340-6-14, in the Vermont Superior Court, Washington Unit.
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