A three-way divide among the federal appeals courts over when it’s appropriate to certify some issues in a case for class certification needs to be resolved, Behr America Inc., Chrysler LLC, and Aramark Uniform & Career Apparel Inc. tell the U.S. Supreme Court.

But landowners alleging the companies contaminated their groundwater argue the Sixth Circuit properly them granted class status on seven issues without requiring them to prove that common questions predominate for the case as a whole. The purported circuit split is just a matter of semantics, they say.

The Supreme Court will jump into the debate that has riled class action attorneys for decades when it considers the case at its March 15 conference.

Groundwater Pollution

The case stems from years of contamination from automotive and dry cleaning facilities in the low-income McCook Field neighborhood of Dayton, Ohio. The operations released tricholoethene and tetrachloroethylene into the groundwater, which now pollute their properties, residents allege.

The trial court determined Ohio law regarding injury and causation prevented the suit from meeting the predominance requirement for class certification.

But it certified seven questions about the defendants’ role in the contamination and whether it caused the plaintiffs’ injuries for class adjudication.

“All seven of these issues are questions that need only be answered once because the answers apply in the same way to each property owner within the plumes,” the U.S. Court of Appeals for the Sixth Circuit said in July. Individualized issues of proximate cause and damages can be resolved with separate procedures.

Issue class certification is contemplated by Federal Rule of Civil Procedure 23(c)(4), which says, “When appropriate, an action may be brought or maintained as a class action with respect to particular issues.”

But the rule doesn’t explain the relationship between issue certification and the predominance requirement of Rule 23(b)(3).

‘Intervention Is Essential’

Behr and the other defendants want the Supreme Court to overturn the Sixth Circuit and set the appeals courts straight on the issue. “Because the question implicates the fundamental mechanics of class actions, this court’s intervention is essential,” they say in their petition for review.

They point to a circuit split among the Fifth Circuit, which takes a narrow view that requires predominance be satisfied for an entire cause of action before considering issue certification; the Second and Ninth Circuits, which take a broad view that requires a showing that the use of issue classes would lead to “material advancement” of the litigation but doesn’t worry about predominance; and the Third and Seventh Circuits, which focus on the fairness and efficiency of issue classes.

Only the Fifth Circuit’s approach “adheres to Rule 23’s text and structure and faithfully applies this court’s precedent,” the companies say.

Rule 23(c)(4) doesn’t create a new kind of class action, but rather a tool for managing class actions, they say. “It authorizes a class action to proceed as a class on particular issues, even though other issues within the cause of action will be tried individually.”

‘Semantic Variations’

The landowners deny in their opposition brief that any circuit split exists.

“Behr’s contention rests principally on a footnote in a nearly quarter-century-old Fifth Circuit decision,” they say.

The Fifth Circuit has “expressly endorsed the approach of the other circuits to Rule 23(c)(4) issue classes” in subsequent decisions, they argue.

The other circuits don’t fundamentally disagreed about how to apply Rule 23(c)(4), they just use different language to discuss it, they say.

“There is no reason for this Court to grant review to resolve a conflict that does not exist,” the landowners say.

Review is also unwarranted because the advisory committee on civil rules has thoroughly considered issue certification and specifically decided not to pursue the companies’ approach, they say.

Behr rejects the landowners’ argument that the Fifth Circuit has retreated from its narrow view of issue classes and attempts to “sand down” the conflict among the circuits.

Paul, Weiss, Rifkind, Wharton & Garrison LLP; Lowenstein Sandler LLP; Thompson Coburn LLP; Williams & Connolly LLP; and Honigman Miller Schwartz & Cohn LLP represent the companies.

National Legal Scholars Law Firm P.C.; Janet, Janet & Suggs LLC; Brannon & Associates; Public Citizen Litigation Group; and German Rubenstein represented the class.

The case is Behr Dayton Thermal Prods. LLC v. Martin, U.S., No. 18-472, conference 3/15/19.