United States District Court, W.D. Arkansas, Fort Smith Division
SCOTT DAY, individually and on behalf of all others similarly situated; and GLENDA WILSON, individually and on behalf of all others similarly situated, PLAINTIFFS
WHIRLPOOL CORPORATION, DEFENDANT
For Scott Day, individually and on behalf of all others similarly situated, Glenda v. Wilson, individually and on behalf of all others similarly situated, Plaintiffs: Kenneth R Shemin, LEAD ATTORNEY, Shemin Law Firm, PLLC, Rogers, AR USA.
For Whirlpool Corporation, Defendant: Karen Aldridge Crawford, Stacy K. Taylor, LEAD ATTORNEY, Nelson Mullins Riley Scarborough LLP, Columbia, SC; Michael T. Williams, LEAD ATTORNEY, Wheeler, Trigg & Kennedy, LLP, Denver, CO USA; Robert Herndon Brunson, LEAD ATTORNEY, PRO HAC VICE, Nelson Mullins Riley Scarborough, Charleston, SC USA; Robert L. Jones, III, LEAD ATTORNEY, Conner & Winters, Fayetteville, AR USA; William Harding Latham, LEAD ATTORNEY, Nelson, Mullins, Riley & Scarborough, LLP, Columbia, SC USA; Andrew C.S. Efaw, Wheeler Trigg O'Donnell LLP, Denver, CO USA; Joel S. Neckers, PRO HAC VICE, Wheeler Trigg O'Donnell LLP, Denver, CO USA.
OPINION AND ORDER
P.K. HOLMES, III, CHIEF UNITED STATES DISTRICT JUDGE.
Currently before the Court are the joint motions of Plaintiffs Scott Day and Glenda Wilson and Defendant Whirlpool Corporation (" Whirlpool") to certify a class action and grant preliminary approval to a class settlement agreement (Docs. 33, 44). The movants filed briefs in support (Docs. 34, 45) and a hearing was held on the motion (Doc. 52). An appearance was entered by counsel for putative class members (" objectors") who filed objections to the motions for certification and for settlement (Docs. 37, 46). Whirlpool filed a response to the objections (Doc. 49). The objectors filed supplemental objections (Doc. 53), and Whirlpool again filed a response (Doc. 54). The Court has considered the issues before it, and for the reasons stated herein, the joint motions (Docs. 33, 44) will be denied at this time.
For 45 years Whirlpool owned and operated an appliance manufacturing facility at 6400 Jenny Lind Road, on the south side of Fort Smith, Arkansas. Operations ceased in June of 2012. From approximately 1967 to 1981, Whirlpool used the chemical trichloroethylene (" TCE") as a degreaser at the facility. Exposure to TCE can be toxic to humans. The use of TCE appears to have been discontinued at some point in the mid-1980s, and Whirlpool reported its use of TCE at the facility to the Arkansas Department of Environmental Quality's (" ADEQ") precursor agency in 1983. In the late 1980s, while removing an underground storage tank at the facility, Whirlpool discovered the presence of elevated concentrations of TCE in the soil and shallow groundwater. Whirlpool worked with ADEQ to develop a plan to further investigate this TCE plume, and in 2002 agreed to investigate and remediate impacted groundwater at the northern portion of its facility. Around that same time, Whirlpool determined that the TCE plume extended to the north of its facility. Subsequent investigations have revealed that the TCE plume extends under multiple properties north of Whirlpool's facility.
In March of 2013, a proposed ordinance came before the Fort Smith Board of Directors with the purpose of regulating groundwater in the area north of the Whirlpool facility. The vote failed. There is nothing before the Court to indicate that property owners affected by the TCE plume were made aware of the plume's existence prior to this point. In May of 2013, the Sebastian County Assessor reduced the tax value of multiple properties north of the Whirlpool facility in ranges varying from 25% to 75% of the prior market value assessment. Some of the properties are located atop the TCE plume, while others are proximate to it. Plaintiff Day filed this lawsuit on May 20, 2013, in the Sebastian County Circuit Court, alleging trespass, nuisance, negligence, a violation of the Arkansas Deceptive Trade Practice Act, a violation of the Arkansas Solid Waste Management Act, and fraudulent concealment. Whirlpool removed to this Court and filed its answer in June of 2013. At about 5:00 p.m. on July 2, 2014, Plaintiff Day filed an amended complaint, joined by Plaintiff Wilson. The next day, at about 12:30 p.m., the parties filed the instant joint motion to certify and preliminarily approve class settlement.
The motion to certify divides the proposed class described in the amended complaint into two putative subclasses--a well-ban subclass and a fringe subclass. (Docs. 34, p. 6; 45-3, p. 4). The putative well-ban subclass comprises property owners who own properties in an area bounded to the south by Ingersoll Avenue (which runs along the north side of the Whirlpool facility); to the east by Jenny Lind Road; to the north by Brazil Avenue; and to the west by Ferguson Street, with an imaginary line extending Ferguson Street south to Ingersoll Avenue. This area includes properties beneath which movants represent the TCE plume has spread, as well as properties merely proximate to the TCE plume but neatly identifiable by their location on the same block. (Doc. 45-1, p. 38). The putative fringe subclass comprises properties that directly border the well-ban subclass properties. (Doc. 45-3, p. 4). Ownership of properties in either putative subclass is a requirement for membership in the proposed class action, and properties the movants believe are affected are identified by addresses in exhibits to the proposed settlement agreement. (Doc. 45-3, pp. 26-31). The proposed settlement would grant affected property owners an award based in part on diminution in value of their property in exchange for an access agreement, a deed restriction on groundwater use, and a claims release waiving all claims related to groundwater chemicals from the Whirlpool facility (except for personal injury and wrongful death claims). The Court held a hearing on the motion on October 6, 2014.
The procedure for certifying a class action lawsuit is found in Federal Rule of Civil Procedure 23. On a motion for class certification, the movant has the burden of affirmatively demonstrating that the requirements of Rule 23 are met. Wal-Mart Stores, Inc. v. Dukes, ___ U.S. ___, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011). When class certification is sought for settlement purposes the Court's heightened attention is required. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). In conducting its rigorous analysis of certification issues, the Court may " probe behind the pleadings, " and that analysis may " entail some overlap with the merits of the plaintiff's underlying claim." Dukes, 131 S.Ct. at 2551 (internal quotations omitted).
Before a class can be certified under Rule 23, the movant must demonstrate that the class representative is a member of the class and that:
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.
Fed. R. Civ. P. 23(a). The prerequisites in these four subsections are commonly referred to as the requirements of " numerosity, commonality, typicality, and adequate representation." Dukes, 131 S.Ct. at 2550. Where subclasses are necessary to maintain a class action, " [t]he requirements must be satisfied as to each subclass." Paxton v. Union Nat'l Bank, 688 F.2d 552, 559 (8th Cir. 1982).
A class that meets these four requirements may proceed with its action if it also qualifies as one of the types of actions that may be maintained under Rule 23(b). The parties here seek certification under Rule 23(b)(3). An action may be maintained under Rule 23(b)(3) if " the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed.R.Civ.P. 23(b)(3). The Rule provides a nonexclusive list of matters pertinent to these findings:
(A) the class members' interest in individually controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already begun by or ...