Mich. Supreme Court punts on Dow class action suit

By Ed Brayton, The Michigan Messenger
8/1/09 12:34 AM

Though expected to reach a decision on whether a group of roughly 2,000 landowners along the Tittabawassee River could be grouped together for a class action suit against Dow Chemical for releasing the dioxin that pollutes their land, the Michigan Supreme Court declined to make a final ruling on the matter and sent the case back to the circuit court for further analysis and deliberation.

At issue in the appeal was whether the circuit court had correctly analyzed and applied the standards that must be met under stand and federal law concerning when a group of people should be granted certification to join together for a class action lawsuit. The circuit court granted class certification to the Tittabawassee landowners; Dow appealed, seeking to force each landowner to bring their own individual lawsuit against the company.

Dow’s argument was that the circuit court did not engage in a “rigorous analysis” of the claims put forth by the plaintiffs in favor of class certification, as required in federal court. The plaintiffs argued that the federal court standard does not apply in a state court proceeding, only state law governs the analysis they must perform.

The state supreme court split the difference, concluding that while the federal standard need not be applied in this state court case, the circuit court must go beyond merely accepting the assertions of the plaintiffs at face value and must analyze the validity of those claims and determine that they are supported by a preliminary look at the evidence in the case before granting class certification.

The five criteria required for class certification required by state law are found in MCR 3.501(A)(1):

(a) the class is so numerous that joinder of all members is impracticable;

(b) there are questions of law or fact common to the members of the class that predominate over questions affecting only individual members;

(c) the claims or defenses of the representative parties are typical of the claims or defenses of the class;

(d) the representative parties will fairly and adequately assert and protect the interests of the class; and

(e) the maintenance of the action as a class action will be superior to other available methods of adjudication in promoting the convenient administration of justice.

The high court then examined the circuit court’s analysis of those five criteria and concluded that the court had done a sufficient analysis of standards A, B and E. They remanded the case back to the district court for further analysis on standards C and D.

The case now goes back to the circuit court, which will have to redo their analysis of two of the five standards for class certification and apply the new ruling’s reasoning to determine whether the plaintiffs have met those two criteria. They have already ruled that the other three criteria have been met and the state supreme court accepted those conclusions as valid.

If the circuit court still determines that the criteria for class certification have been met after applying the standards found in this ruling, the case can then go forward as a class action suit — unless Dow appeals that determination again, restarting the appellate phase of the trial all over again.

Friday’s full ruling can be found here (PDF).


For additional articles like this one, go to the Tittabawassee River Watch web site www.trwnews.net for complete coverage of the Tittabawassee River Dow Chemical dioxin contamination saga. . The Newspaper / Media page of our site contains an extensive archive of media articles dating back to January 2002. The source organization's web site link is listed to the right of the article, visit often for other news in our area. The Newspaper / Media page may be accessed by scrolling down to the bottom of the CONTENTS section and clicking on the Newspaper/Media link.