As a few other blogs have noted, last week Justice Souter emerged from semi-retirement to write an opinion on a Rule 23(f) petition. While a new opinion from a former Supreme Court justice is – by itself – newsworthy, it also provides an important tactical lesson for defendants briefing certification.

In Gintis v. Bouchard Transportation Co., Inc., 2010 WL 617395 (1st Cir. Feb. 23, 2010) (Souter, J.).the plaintiffs brought a proposed class action for property damage caused when a fuel barge struck an offshore reef, spilling 98,000 barrels of oil across 90 miles of Massachusetts coastline. The defendants admitted they were negligent in causing the spill, although they did not concede liability to any individual property owners. The Massachusetts government took charge of the cleanup efforts, supervising a “Unified Command” consisting of the Coast Guard, the commonwealth’s Department of Environmental Protection, the defendants, and an unnamed “Licensed Site Professional.” The Command used a common methodology for cleaning the spill, dividing the coastline into segments and categorizing them by the degree of oil contamination. When the plaintiffs (all of whom owned property on the affected coastline) moved for class certification, the trial court declined, relying heavily on a previous case in the jurisdiction.

The First Circuit Court of Appeals reversed. Technically, its ground for doing so was that the lower court had not engaged in a “rigorous analysis” of the certification motion, but Justuce Souter also suggested “plaintiffs presented substantial evidence of predominating common issues.”

What were those issues?  Some were specific to the case, like the defendant’s admission of negligence, and the plaintiffs’ announced intent to use Command records to prove their claims.  But others appear to stem directly from the defendant’s arguments. Among them were the defendants’ announcement that it would oppose admitting the Command records into evidence:

Bouchard’s very opposition to the use of the arguably helpful records seems to promise that most or all cases, if individually litigated, would require repetitious resolution of an objection by Bouchard that is common to each one of them. Bouchard’s position, in other words, apparently guarantees a crucial common issue of great importance in the event of individual litigation.

and their announced intention to oppose common expert testimony:

Bouchard’s effort to discredit this approach apparently portends a fight over admissibility and weight that would be identical in at least a high proportion of cases if tried individually.

What’s the defendant’s lesson from this? It is not enough to just challenge plaintiff’s common proof. The defendant must make an affirmative showing why individualized issues will predominate over common issues.