One of the implicit requirements of Rule 23 is that a class should not be certified unless it is “ascertainable;” thus, if a court is required to engage in fact-intensive individualized analysis to identify class members, certification is not appropriate.  While we recently blogged about two thoughtful opinions coming from the Third Circuit, decisions in our home Circuits have not been as plentiful.

Judge Henry E. Autrey of the Eastern District of Missouri, however, recently highlighted the  requirement and its affect on the other Rule 23 requirements in Henke v. Arco Midcon, LLC, No. 4:10CV86 HEA, 2014 WL 982777 (E.D. Mo. Mar. 12, 2014).  In Henke, the plaintiffs alleged that their land was contaminated from oil leaks from a decades old petroleum pipeline that had been reconditioned to carry fiber optic cable.  The problem for the plaintiffs was that there were several additional active and inactive petroleum pipelines running across their property; and although plaintiffs’ experts indicated there was some contamination on their property – they did not opine as to the source of the contamination or that the contamination arose from the defendants’ abandoned pipeline.

In its analysis, the court observed that plaintiff’s proposed class definition was inadequate not only because it raised “the potential need for fact-intensive individualized analysis to identify class members” but also because it raised issues of Article III standing, as plaintiffs could not sufficiently establish that they had suffered an injury-in-fact, much less that they were members or the class they purported to represent.  Id. at *5-6.  The court then examined how the injury and causation inquiry negatively impacted plaintiff’s ability to satisfy commonality, due to the individual nature of each class member’s real property interest.

Furthermore, the court also rejected plaintiff’s attempt to characterize the requested environmental remediation as injunctive under Rule 23(b)(2).  The court held that the proposed class lacked the required “cohesiveness” required under Rule 23(b)(2) for injunctive relief because of the individualized differences in the level of contamination, the source of the contamination, and how it affected each individual class member precluded any possibility that an injunction “could be sufficiently specific to provide a group-wide remedy.”  Id. at *12.  Likewise, the court held that predominance was not met not only due to the multitude of individual differences between class member properties, but also “the lack of any single, operative event or conduct that may have ’caused’ injury to each individual plaintiff.”  Id. at *16.  The court also found that “issue certification” under Rule 23(c)(4) was not an option, adopting the approach espoused by the Fifth Circuit in Castano v. American Tobacco Company, 84 F.3d 734 (5th Cir. 1996).

The entire decision is well worth reading for its in-depth analysis of the intersection of ascertainability and Rule 23’s explicit requirements. For another perspective on the decision, especially how the individualized injury inquiry affects typicality check out this post by Andrew Trask at Class Action Countermeasures.

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