by Kelly Becker
In Barasich, et al. v. Shell Pipeline Co. LP, et al., 2008 U.S. Dist. Lexis 47474 (E.D. La. 6/19/08), at issue was, inter alia, whether a group of commercial oyster fishermen could bring a class action against a group of defendants that owned land-based storage tanks or pipelines that burst as a result of Hurricane Katrina, causing a release of crude oil that allegedly damaged the aquatic wildlife, estuaries, and plaintiffs’ interest in their oyster leases. At the outset, the court reaffirmed its earlier ruling that the plaintiffs failed to state a claim for alleged damages to non-proprietary State-owned natural resources, including marine estuaries. Thus, the only question was whether the plaintiffs could pursue a class action for the remaining claim of purported damage to their individual oyster leases.
The defendants moved to strike the class action, arguing that the plaintiffs could not meet the requirements for class certification under Federal Rule of Civil Procedure Rule 23. That Rule requires plaintiffs seeking to certify a class to establish (1) numerosity, (2) commonality, (3) typicality, and (4) adequate representation. In addition, plaintiffs must demonstrate that (1) common questions of fact and law predominate, and (2) the class action device would be the best method for procedure. The plaintiffs purported to define the class as “all commercial oystermen whose oyster leases were contaminated by oil discharged during Hurricane Katrina due to the negligence of defendants.”
Plaintiffs argued that this proposed class would ensure adequate representation of all individual plaintiffs because plaintiffs’ experts had “developed significant factual information which supports their allegations that the oil from [d]efendants’ spills likely combined and mixed together to create a large oil slick affecting many of the oyster leases,” known as the “washing machine” theory. The defendants’ countered, arguing that fatal to the class definition was any geographic boundaries, making the class not ascertainable. The court agreed with the defendants, holding that the plaintiffs did not meet their burden of adequately defining the class. The court recognized the point raised by the defendants that the plaintiffs failed to establish a geographic boundary and further explained that it would require an individualized determination of the merits of each plantiff’s claim in order to assess whether each plaintiff was a proper member of the proposed class.
The court further held that the plaintiffs had not met their burden of proving that common issues of fact and law would predominate. The court focused heavily on the plaintiffs’ purported attempt to oversimplify the burden of proof that would require more than a common event such as a pipeline or tank rupture. Rather, the court explained that each plaintiff would be required to prove that its particular oyster lease suffered damages as a result of a specific defendant’s release of oil. The court held that “each oyster lessee must establish that the conduct of a particular [d]efendant was a substantial factor in causing the alleged damage to the particular acreage, and that quantifiable damage to that acreage resulted.” Because plaintiffs could not meet this burden with any proof common to the class, the court granted defendants’ motion to strike class certification.