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On December 30, 2024, the NAM filed an amicus brief asking the 1st Circuit to hold that damages classes cannot be certified under Federal Rule of Civil Procedure 23(c)(4) unless they satisfy the requirements of Rule 23(b)(3). Saint-Gobain has owned and operated a manufacturing facility in Merrimack, New Hampshire since 2000. The plaintiffs in this case, individuals who live or have lived in the Merrimack area, brought tort claims—including negligence, nuisance, trespass and negligent failure to warn—alleging that Saint-Gobain’s manufacturing process at its facility in Merrimack used chemicals that included PFOA. The plaintiffs further alleged that PFOA is a toxic chemical that was released into the air from the Merrimack facility and has contaminated the air, ground and water in Merrimack and nearby towns. They alleged damages in the form of discomfort, annoyance, loss of use and enjoyment of property, diminished property value, the need for and cost of mitigating contamination, and, for private well owners, the costs associated with switching from private wells to municipal water. The plaintiffs requested certification of a damages class consisting of residential property owners within defined geographic areas who are allegedly impacted by contamination related to PFOA emissions from the Saint-Gobain facility. After the District of New Hampshire sua sponte certified a damages class under Rule 23(c)(4), Saint-Gobain petitioned for, and was granted, an interlocutory appeal by the 1st Circuit.

We argued in our amicus brief that the district court improperly certified an issue class under Rule 23©(4) when individualized issues prevented 23(b)(3) class certification. Rule 23©(4) is a case management tool to manage a class certified under Rule 23(b)—specifically, for money-damages claims, those that meet Rule 23(b)(3)’s predominance and superiority demands.