Contamination 'Issue' Class Actions—Recent Certification Realities

01.18.19

Douglas A. Henderson

Lindsey B. Mann

Nicholas H. Howell

Bloomberg Law published an Insight piece, " Contamination 'Issue' Class Actions—Recent Certification Realities," by partners Douglas A. Henderson and Lindsey B. Mann and associate Nicholas H. Howell. In the article, the authors review the confusing outcomes and mistaken promise of environmental “issue” class actions under Rule 23(c). Two cases from 2018—involving virtually identical facts—reach fundamentally different conclusions on whether such “issue” classes are appropriate in environmental exposure cases. The authors note: “[i]f the Behr-Dayton approach stands, claim-wide predominance and superiority become aspirational, rather than the requirements they were intended to be, so long as the ‘issue’ class will, in the court’s estimation, advance the litigation or push the parties to settle.” Based on the these cases, Henderson, Mann conclude, Rule 23(c) “issue” class actions should not be interpreted to resuscitate flawed putative classes under Rule 23(b).