Georgia Supreme Court de-certifies a ‘toxic tort’ class action
The U.S. Chamber’s amicus brief argues that post-Dukes and Comcast, environmental tort cases are particularly unsuitable for class treatment. In mass tort cases (distinguishing mass accident cases), class treatment has been historically disfavored. Several post-Dukes environmental cases make it especially clear that environmental tort cases are generally unsuitable for class treatment. Moreover, the lower court’s ruling is inconsistent with Georgia class certification case law, which has (until now) supported a “rigorous analysis” approach requiring a court to consider there are common damages/remedies and whether such commonalities predominate. Additionally, the federal Due Process rights of defendants are at stake when courts fail to properly apply Rule 23. In this case, class certification is likely to force the defendant to abandon individualized defenses. Even on the terms of Rule 23, classes should not be certified on the premise that the defendant abandons any part of the defenses available to him. Finally, contrary to the plaintiffs’ amici, application of Georgia’s “rigorous analysis” approach would not “vitiate a landowner’s only economical means of recovery for property damage cause by corporate pollution.” Individual damages could be enough to incentivize these claims.
Alan E. Untereiner and Matthew M. Madden of Robbins, Russel, Englert, Orseck, Untereiner & Sauber LLP represented the U.S. Chamber as co-counsel to the National Chamber Litigation Center in this case.
The Georgia Chamber of Commerce, Georgia Agribusiness Council, Georgia Association of Manufacturers, Georgia Chemistry Council, Georgia Mining Association, Georgia Paper and Forest Products Association, Inc., Georgia Poultry Federation, and Georgia Industry Environmental Coalition all joined the U.S. Chamber brief.
The Georgia Supreme Court reversed the class-certification order, holding that it was an abuse of discretion and should have been reversed by the Court of Appeals.