Lawyers rush to cite Henry v. Dow

Those who defend companies against environmental class actions are taking notice of Saginaw Circuit Court Visiting Judge Leopold Borello’s move to decertify a class action against Dow Chemical because of the U.S. Supreme Court ruling in Wal-Mart v. Dukes.

In June the U.S. Supreme Court ruled that more than a million current and former Wal-Mart employees could not sue the company for discrimination collectively because they did not have enough in common with one another.

In one of the first state cases to refer to this decision, this week Borello decertified a class of property owners that sought to sue Dow for contaminating their properties with dioxin.

As in the Wal-Mart case he said, the owners of the contaminated property, cannot sue as a group because “highly individualized factual inquiries” would be necessary to assess their alleged injuries.

The American Lawyer reports that the decision in Henry v. Dow may have implications for other environmental class actions.

Douglas Kurtenbach of Kirkland & Ellis, who represents Dow along with Dickinson Wright and Braun Kendrick Finkbeiner, said Wednesday that he’d been receiving calls all morning from lawyers hoping to cite the Dow decision in other environmental class actions. “The analysis in Dukes applies in full force if you take out Title IIV and put in nuisance,” Kurtenbach said.