The NAM joined in an amicus brief 4/24/06 urging the Michigan Court of Appeals to reverse a trial court ruling that granted class certification without conducting a rigorous analysis of whether the facts and issues in the case satisfy the factors for class action certification. The trial court failed to give the appropriate level of scrutiny to whether the class claims met the Michigan class action requirements, such as predominance, superiority, typicality and adequacy. It certified a class whose members owned property with varying dioxin levels, including some with no elevated dioxin levels, with different flooding histories, and with different histories of exposure to dioxin. The damage claims varied widely, with some plaintiffs claiming no more than vague concerns. Thus, injury, causation and damages were all highly individualized issues unsuitable for class action treatment. Our brief highlighted the dangers of allowing cases to be certified as class actions without a rigorous analysis of the class claims. Lax standards for class action certification encourage unwarranted litigation, blackmail settlements, skewed trial outcomes and windfall legal fees. They also make those jurisdictions that use them magnets for statewide class actions, resulting in higher prices, withdrawn products and services, hampered economic development and bankruptcies.
In addition, we urged the court to reject a novel plaintiff’s theory that the class be certified based on the barest minimum alleged commonality – that they are located within the 100-year flood plain of the Tittabawassee River and allegedly share a fear that the river could flood at unknown times and frequency in the future, and could leave contamination on their property. This is a speculative concern by plaintiffs who are not currently injured, and allowing such claims would create a stampede of litigation and drain resources needed to compensate those with real physical injuries and a need for medical care. This theory, if adopted in Michigan, could be used against nearly any industrial facility that someone might fear could cause a hazardous release at some point in the future.
On 1/24/2008, the Michigan Court of Appeals upheld the trial court's certification of the case. It ruled that only clearly erroneous rulings may be overturned, and that what little evidence was available to the trial judge was insufficient to overturn the judge. An invstigation by the Michigal Department of Environmental Quality generally supported the class definition, although the appeals court recognized that the class could have been reduced to the extent property owners had "zero to a little amount of dioxin" in their soil.