On December 27, 2022, the NAM filed a coalition amicus brief urging the 6th Circuit to reverse the Southern District of Ohio’s class certification order which attempts to fund an investigation of PFAS chemicals through an injunction-based class action. In this case, the lead plaintiff asked the Southern District of Ohio to force ten separate companies to provide for and fund a panel that will study potential health risks associated with nearly 5,000 different PFAS chemicals. The court obliged by erroneously certifying the lawsuit as an injunction-based class action under Rule 23(b)(2)—an extraordinary use of a rule that typically applies in cases involving civil rights and government benefits, where a single injunction or declaratory judgment would provide relief to all members of the class. Following NAM’s participation as amicus at the petition stage, the 6th Circuit granted interlocutory review, referencing our brief filed in support of the petition in a footnote (“What plaintiffs desire is an order that defendants fund, at substantial expense, both a science panel and potential medical monitoring. As amici point out, that claim is probably more analogous to a damages action than to traditional equitable relief”).
As explained in our December 27 brief, Rule 23(b)(2) is subject to the constraints that stem from traditional equity practice and the district court’s order lacks support in traditional equitable principles and bears no similarities to the injunctions historically ordered by equity courts. The district court cannot use its authority to force defendants to help determine whether a plaintiff has any viable claims, much less whether millions of absent class members exposed to unknown PFAS chemicals from unknown sources have any claims.
All manufacturers support a predictable, rational, and fair legal environment for class actions. They thus have a keen interest in ensuring that the courts rigorously and consistently analyze whether plaintiffs have properly satisfied all the requirements of Rule 23 before certifying a class. If the plaintiff here can get a class of millions certified to fund an investigation of yet-unknown health issues associated with PFAS chemicals, nearly every industrial emission, consumer product, food and beverage, or drug and medical device could be subject to similar industry-funded fact finding.
Happily, on November 27, 2023, the 6th Circuit vacated the class certification order.