Karl Ebert; Carol Krauze; Jackie Milbrandt, individually and on behalf of all persons similarly situated, Plaintiffs - Appellees
General Mills, Inc., Defendant - Appellant
October 21, 2015.
[Copyrighted Material Omitted]
from United States District Court for the District of
Minnesota - Minneapolis.
Karl Ebert, Carol Krauze, Jackie Milbrandt, individually and
on behalf of all persons similarly situated, Plaintiffs -
Appellees: Norman B. Berger, Michael Damon Hayes, VARGA &
BERGER, Chicago, IL; Shawn Michael Collins, Edward J. Manzke,
COLLINS LAW FIRM, Naperville, IL; Anne T. Regan, John Gordon
Rudd, Jr., ZIMMERMAN & REED, Minneapolis, MN; Mark Handley
Thieroff, SIEGEL & BRILL, Minneapolis, MN.
General Mills, Inc., Defendant - Appellant: Emily A. Ambrose,
Jerry Blackwell, Corey L. Gordon, Benjamin Winters Hulse,
BLACKWELL & BURKE, Minneapolis, MN; Aaron Daniel Van Oort,
FAEGRE & BAKER, Minneapolis, MN.
WOLLMAN, BEAM, and GRUENDER, Circuit Judges.
Mills, Inc., challenges the district court's grant of
class certification in this environmental-contamination
lawsuit. Plaintiffs, all owners of residential
properties in a particular neighborhood in Minneapolis,
Minnesota, sued General Mills, alleging General Mills caused
the chemical substance trichloroethylene (TCE) to be released
onto the ground and into the environment at a former General
Mills facility, located within the same neighborhood. The
plaintiffs claim that as a result of this contamination, TCE
vapors migrated into the surrounding residential area,
threatening the health of the residents and diminishing the
value of their property. Finding the requisites of Federal
Rule of Civil Procedure 23 satisfied, the district court
certified a proposed class. Because the class lacks the
requisite commonality and cohesiveness to satisfy Rule 23, we
Mills owned and operated an industrial facility in the Como
neighborhood of Minneapolis from approximately 1930 to 1977.
In 1977, Henkel Corporation purchased the property from
General Mills. From 1947 to 1962, General Mills disposed of
as much as one-thousand gallons of hazardous substances per
year by burying it in perforated drums in the ground at the
General Mills facility. In December 1980, Congress passed the
Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA), which required current and former
owners of facilities at which chemicals were used to notify
the Environmental Protection Agency (EPA) of suspected onsite
disposal so EPA could identify and inventory hazardous sites
and prioritize them on a national list for cleanup. Under
this rubric, without admitting liability, General Mills, in
1984, signed a Consent Order and Remedial Action Plan with
the Minnesota Pollution Control Agency (MPCA) in which it
agreed, in part, to address TCE presence, if any, in
groundwater below and near the facility. Accordingly, for
nearly thirty years, General Mills participated in
groundwater clean-up and remediation efforts in the Como
neighborhood under the direction of, and in conjunction with,
the federal government and the State of Minnesota.
2011, in cooperation with the MPCA, General Mills began to
evaluate the potential for migration of TCE in the form of
vapor from shallow groundwater to the soil above. After
discovering TCE in soil vapor in October 2013, General Mills
modified the consent order with the MPCA to address the
investigation and mitigation of vapor risk near the facility.
Under that plan, General Mills contractors sampled soil gas
beneath building foundations (" sub-slab sampling"
) and discovered variation among properties. Wherever the TCE
concentration in sub-slab vapor exceeded a particular
threshold, General Mills installed vapor mitigation systems
(VMSs) to prevent TCE intrusion into the
building above. As noted by the district court, according to
one of General Mills' experts, 327 homes in the Como
neighborhood have had soil vapor testing and do not have
detectable TCE concentrations. General Mills installed VMSs
in 118 homes in the Como neighborhood.
action, Plaintiffs allege that in the past, " over the
course of many years," General Mills released TCE onto
the ground and into the environment surrounding its former
facility and that now the TCE, in the form of vapors, is
threatening home and business owners in the Como
neighborhood. The chemical's ...