Bradley Partner Scott Burnett Smith Quoted in Bloomberg on Circuit Split in Certifying Issues Class

Bradley attorney Scott Burnett Smith was quoted in Bloomberg on a decision that widens a three-way split among the federal appeals courts over whether Federal Rule of Civil Procedure 23(c)(4) may be used to certify an issues class where predominance hasn’t been satisfied. Behr America Inc., Chrysler Motors LLC, and Aramark Uniform & Career Apparel Inc. must face class claims by neighbors for contaminating their groundwater, the U.S. Court of Appeals for the Sixth Circuit affirmed, and the land owners may pursue seven issues on a class basis without proving that common questions predominate over individual issues for the case as a whole.

Smith said the case was wrongly decided. The plaintiffs’ claims are “quintessentially individualized” because the court will have to look into whether vapors from the alleged pollution entered each person’s home, he said.

“Treating Rule 23(c)(4) as an alternative way to certify improper ‘issue classes’ will inevitably lead to more blackmail settlements, especially within Sixth Circuit states like Michigan and Ohio, where many old industrial sites are located,” Smith said.

The complete article, “Chrysler, Aramark Will Face Contamination Class Claims,” appeared in Bloomberg on July 16, 2018.