Lawyers rush to cite Henry v. Dow
By Eartha Jane Melzer |The Michigan Messenger | 07.22.11 | 3:05 pm

Those who defend companies against environmental class actions are taking notice of Saginaw Circuit Court Visiting Judge Leopold Borello’s move to decertify a class action against Dow Chemical because of the U.S. Supreme Court ruling in Wal-Mart v. Dukes.

In June the U.S. Supreme Court ruled that more than a million current and former Wal-Mart employees could not sue the company for discrimination collectively because they did not have enough in common with one another.

In one of the first state cases to refer to this decision, this week Borello decertified a class of property owners that sought to sue Dow for contaminating their properties with dioxin.

As in the Wal-Mart case he said, the owners of the contaminated property, cannot sue as a group because “highly individualized factual inquiries” would be necessary to assess their alleged injuries.

The American Lawyer reports that the decision in Henry v. Dow may have implications for other environmental class actions.

Douglas Kurtenbach of Kirkland & Ellis, who represents Dow along with Dickinson Wright and Braun Kendrick Finkbeiner, said Wednesday that he’d been receiving calls all morning from lawyers hoping to cite the Dow decision in other environmental class actions. “The analysis in Dukes applies in full force if you take out Title IIV and put in nuisance,” Kurtenbach said.

For additional articles like this one, go to the Tittabawassee River Watch web site 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.