General Mills Wins Reversal of TCE Class Certification

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By Perry Cooper

May 20 — General Mills successfully overturned certification of a class of homeowners in litigation alleging the company's former plant contaminated their properties ( Ebert v. Gen. Mills Inc., 2016 BL 161161, 8th Cir., No. 15-1735, 5/20/16 ).

Common issues don't predominate over all claims and the claims aren't sufficiently cohesive to support class certification, the U.S. Court of Appeals for the Eighth Circuit ruled in a May 20 opinion by Judge C. Arlen Beam.

Minneapolis residents allege that General Mills Inc. caused trichloroethylene (TCE) improperly stored at the company's former plant to migrate onto their properties. Although the company has completed remediation projects in the past, the residents allege that TCE vapors now threaten their homes.

The district court certified their claims. It bifurcated the action into two phases, liability and damages (16 CLASS 249, 3/13/15).

Manufactured Predominance

But the Eighth Circuit said bifurcating the case narrowed the question for which certification was sought. Doing so “limited the issues and essentially manufactured a case that would satisfy the Rule 23(b)(3) predominance inquiry,” the appeals court said.

Bifurcation “unravels and undoes any efficiencies gained by the class proceeding because many individual issues will require trial,” it said.

The Eighth Circuit also found the class wasn't cohesive enough to support certification of injunctive claims. “Remediation efforts on each of the affective properties, should they be awarded, will be unique,” the court said.

Judges Roger L. Wollman and Raymond W. Gruender also served on the panel.

Varga & Berger; Collins Law Firm; Zimmerman & Reed; and Siegel & Brill represented the plaintiffs.

Blackwell & Burke and Faegre & Baker represented General Mills.

To contact the reporter on this story: Perry Cooper in Washington at pcooper@bna.com

To contact the editors responsible for this story: Steven Patrick at spatrick@bna.com and Jeffrey D. Koelemay at jkoelemay@bna.com