Justice Souter Reverses Order Denying Class Certification, Reasoning that It Failed to Rigorously Analyze Rule 23 Prerequisites
It's not often that you find a Supreme Court Justice commenting on mass tort class actions. But on Tuesday, retired Justice David H. Souter sat by designation on the First Circuit and issued an opinion in Gintis v. Bouchard Transp. Co., 2010 WL 617395 (1st Cir. Feb. 23, 2010). Of course, if you read this blog, you remember Gintis: it was part of the competing class actions that arose out of an oil spill in Buzzards Bay that I posted about previously. The District Court ultimately denied class certification of a public nuisance class because the individualized issues of "special injury" and damages predominated over the common issues.
On appeal, Justice Souter reversed the decision below because the trial court did not engage in a rigorous analysis of whether the class certification requirements were met. As Justice Souter characterized the opinion below, it "listed the elements to be proven by evidence that ultimately must speak to individual claims, and cited one precedent example among cases going different ways." Id. at *2.
Although Justice Souter did not dictate what the outcome should be on remand, it was clear that he believed a class should be certififed. Noting the defendant's objection to the use of its records and its challenge to the plaintiffs' expert's appraisal methodology, he posited that the defendant's "arguments in this appeal appear to show that substantial and serious common issues would arise over and over in potential individual cases." Id. at *3. He opined that with likely recoveries being between $12,000 and $39,000, and the defense challenging injury, causation, and compensation, this may be one of those cases "that may well go to the very reason for Rule 23(b)(3), mentioned before (i.e., to make room for claims that plaintiffs could never afford to press one by one)." Id.
You may remember that the District Court's decision had raised an interesting question: what is the preclusive effect of the state court's refusal to certify a broad class of property owners all over Buzzard's Bay? (Instead, it certified a much smaller class of property owners from one small town.) Justice Souter relegated that question to a footnote: "that judgment has no prelusive effect against these plaintiffs, who were neither parties to the state action nor in privity with those who were." Id. at n.2.
