from Frank Citera of Greenberg Traurig Chicago

On January 17, 2014 the United States Court of Appeals for the Seventh Circuit reversed a district order certifying a class of Illinois property owners who claimed that a nearby refinery had leaked benzene and other contaminants into the groundwater under the class members’ homes.  The suit sought damages measured primarily by the effect of the groundwater contamination on the value of the class members’ properties.   The defendants argued that the District Court’s class certification order did not establish the predominance of issues common to the entire class over issues that vary among the members of the class.  The Seventh Circuit agreed, stating:   “Mere assertion by class counsel that common issues predominate is not enough.  That would be too facile. . . [W]hen factual disputes bear on issues vital to certification (that is, to whether the suit should be allowed to be litigated as a class action), such as predominance, the court must ‘receive evidence . . . and resolve the disputes before deciding whether to certify the case.’”     In reaching this conclusion, the Seventh Circuit concluded that the potential existed for a host of individual issues that will vary from homeowner to homeowner, including whether the presence of the benzene reduced the value of an individual’s property and, if so, how great has the reduction been.    Parko v. Shell Oil Co., Nos. 13-8023 & 8024 (7th Cir. Jan. 17, 2014).

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Photo of David Mandelbaum David Mandelbaum

David G. Mandelbaum represents clients facing problems under environmental laws. He regularly represents clients in lawsuits and also has helped clients achieve satisfactory outcomes through regulatory negotiation or private transactions. A Fellow of the American College of Environmental Lawyers, David teaches Superfund, and…

David G. Mandelbaum represents clients facing problems under environmental laws. He regularly represents clients in lawsuits and also has helped clients achieve satisfactory outcomes through regulatory negotiation or private transactions. A Fellow of the American College of Environmental Lawyers, David teaches Superfund, and Oil and Gas Law in rotation at the Temple University Beasley School of Law as well as an environmental litigation course at Suffolk (Boston) Law School.

Since United States v. Atlas Minerals, the first multi-generator Superfund contribution case to go to trial in 1993, Mr. Mandelbaum has been engaged in matters involving allocation of costs among responsible parties, especially under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).  He has tried large cases and resolved others as lead counsel.  He has written, spoken, and taught extensively on the subject.  More recently he also has been engaged to assist lead counsel from this firm and others:

  • to develop cost allocation methodologies;
  • to craft expert testimony in support of a favored methodology (given a definition of “fairness,” why one methodology better tracks it than another);
  • to develop efficient case management approaches; and to assist private allocation as part of the neutral team.

Concentrations

  • Air, water and waste regulation
  • Superfund and contamination
  • Climate change
  • Oil and gas development
  • Water rights