Lately, there’s been a lot of discussion in the class-action world about commonality. Which is why it’s so refreshing to see the Fifth Circuit take on a case where the defendants argued predominance under Rule 23(b)(3).
The case–Madison v. Chalmette Refining–is a toxic tort case. As Judge Edith Jones, writing for the Fifth Circuit, describes the facts, the Chalmette Refinery, which processes petroleum, released an amount of petroleum coke dust that migrated over to the nearby Chalmette Battlefield while a number of students and parents were watching a reenactment of the Battle of New Orleans. The parkgoers filed a class action, seeking damages for a variety of personal injury claims.
The trial judge orally granted plaintiffs’ motion for class certification, without having heard any evidence. The defendant appealed. During the briefing period, the district court issued its written order offering some supplemental analysis explaining why it believed plaintiffs had met their Rule 23 burden.
The Fifth Circuit disagreed; its primary reason for doing so was that the plaintiffs had offered no specific facts to back up their claim that common issues predominated in the litigation. And, in her opinion reversing the trial court, Judge Jones provided clear guidance–worth quoting at length–about how specific a plaintiff must be when demonstrating predominance:
"Determining whether the plaintiffs can clear the predominance hurdle set by Rule 23(b)(3) requires district courts to consider "how a trial on the merits would be conducted if a class were certified." Sandwich Chef of Texas, Inc. v. Reliance Nat’l Ins. Indem. Co. This, in turn, "entails identifying the substantive issues that will control the outcome, assessing which issues will predominate, and then determining whether the issues are common to the class," a process that ultimately "prevents the class from degenerating into a series of individual trials." O’Sullivan. Determining whether the superiority requirement is met requires a fact-specific analysis and will vary depending on the circumstances of any given case.
In stark contrast to the detailed trial plans in Watson and Turner, the district court simply concluded that "[t]he common liability issues can be tried in a single class action trial with any individual issues of damages reserved for individual treatment." The district court failed to consider whether this case could be "streamlined using other case management tools, including narrowing the claims and potential plaintiffs through summary judgment, [or] facilitating the disposition of the remaining plaintiffs’ claims through issuance of a [pre-discovery] order."
The court failed to identify "the substantive issues that will control the outcome, assess which issues will predominate, and then determin[e] whether the issues are common to the class." Bell Atlantic. Absent this analysis, "it was impossible for the court to know whether the common issues would be a ‘significant’ portion of the individual trials," Castano, much less whether the common issues predominate. The opinion is also silent as to the relevant state law that applies to Plaintiffs’ claims and what Plaintiffs must prove to make their case."
(Emphasis added, internal citations reduced to hyperlinks.) Judge Jones’s opinion is a strong reminder of a fundamental principle of class-action law: to get a class certified, plaintiffs must be able to explain how the class trial will proceed. Basic as this requirement is, it is the primary weakness of many plaintiffs’ class certification motions.