Energy Newsletter - August 2020

Environmental Tort Class Actions -

In what has become a near legal certainty following plant explosions, train wrecks with chemical spills, and other large-scale accidents, plaintiffs often file suit and seek to certify personal injury and property damage classes under Federal Rule of Civil Procedure 23 or state class action laws. Increasingly, class actions are filed within hours of an incident, well before the smoke clears or the facts are known. In hundreds of environmental tort class actions filed over the past forty years, while the legal lines for certifying environmental tort class actions are not always bright, they are well established—environmental class actions are generally not certified. Of twenty-five or so putative environmental tort class actions filed over the last two years, a majority are still are not certified, but a few courts, employing distinctive views of commonality and predominance, and considering local conditions, certified class actions under unique facts.

Key Class Certification Considerations -

The rules for certification of environmental tort class actions are well known. First, a plaintiff must satisfy the four necessary requirements in Rule 23(a): numerosity; commonality; typicality; and adequacy. Second, assuming the Rule 23(a) requirements are met, a plaintiff must then satisfy the requirements of Rule 23(b). For environmental tort class actions, under Rule 23(b)(3), a plaintiff must show that “common issues of law or fact” “predominate over any individual questions” and that “a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” In addition to the Rule 23 requirements, numerous courts considering environmental tort class actions also regularly address ascertainability—namely, whether and how the class is defined. In most cases, four issues drive the analysis of environmental tort class actions: (1) whether “common” issues meet the modern definition under Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011); (2) whether common issues “predominate” over individual issues under Rule 23(b)(3); (3) whether the class is “ascertainable;” and (4) whether plaintiffs provide sufficient facts at the pleading stage and offer sufficient proof at the evidentiary stage.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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