In Ebert v General Mills, 2016 WL2943193, (8th Cir, May 20, 2016), residential neighbors brought a class action suit against General Mills alleging that it caused the release of TCE into the ground and that TCE has migrated under their homes in the form of vapor in shallow groundwater, causing them injury.   The specific injury alleged was risk to the health of the residents and diminution in value of their homes.

The District Court granted class certification and the Eighth Circuit Court of Appeals reversed.  In determining whether a claim may be certified as a class action under rule 23 of the Federal Rules of Civil Procedure, the court must first examine whether there are common issues of fact or law and if there are, then the court examines whether the common issues predominate.  The issue of predominance, the Court stated, is qualitative and not quantitative.  Here, there were numerous common issues related to the defendant’s conduct and to the effects of that conduct.  However, the Court concluded that issues of liability and damages would require an examination of the facts related to each individual residence.  Thus, the individual issues predominate.

The decision follows the reasoning of the Supreme Court in several recent decisions.  See, e.g. Wal-Mart Stores v Dukes, 564 U.S. 538 (2011) and Tyson Foods, Inc. v Bouaphakeo __ U.S. __, 136 S. Ct. 1036 (2016).  The fact that the Supreme Court has addressed class certification several times in recent years, shows the important role class certification plays in resolving matters that affect large groups.  The risk to a business in facing a large class claim and the difficulty individuals have in litigating against large corporate entities, combine to mean that the issue of class certification will continue to be important to both parties.  With regard to the use of class action by neighbors of a Superfund Site, the Eighth Circuit approach seems sound because the impacts can only be assessed on an individual basis.