Comcast May Be A Class Action Game-Changer, But Not In Boston

In Comcast Corp. v Behrend, 133 S.Ct. 1426 (March 27, 2013), the Supreme Court held that the lower court erred in failing to consider flaws in plaintiffs’ damages model merely because the damages model would be pertinent on merits issues…..thus, "running afoul of our precedents requiring precisely that inquiry".  It was up to the district court to determine whether the expert’s methodology was "just and reasonable inference or speculative."  

Citing the Reference Manual on Scientific Evidence, the court held that the "first step in a damages study is the translation of the legal theory of the harmful event into an analysis of the economic impact of that event."  

Pre-Comcast, plaintiffs generally focused on getting over the hump of standing and/or alleging damages under various legal theories at the pleading stage, without knowing how they would ever prove up damages. No more! The ground has shifted beneath the feet of the plaintiff class action bar.  To cite the D.C. Circuit Court of Appeals, the new judicial mantra is "No damages model, no predominance, no class certification".

Despite Comcast’s holding, some federal trial courts continue to certify class actions of arguably questionable merit. An example of such a case is In re: Nexium (Esomeprazole) Antitrust Litigation which was handed down by the District of Massachusetts on November 14, 2013.

Plaintiffs alleged that they paid higher prices for Nexium because less expensive generic versions of Nexium were prevented from coming onto the market due to AstraZeneca’s settlement with three generic manufacturers. The end-payors (as the plaintiffs called themselves) sought to certify a sprawling Rule 26(b)(3) class consisting of virtually every consumer (insured and uninsured), commercial insurer, health plan and pharmacy benefit manager who had paid any portion of the purchase price for Nexium for a six year period in twenty-six states.

Although the district court referenced the Supreme Court’s rulings in Wal-Mart and Comcast, it certified a class despite plaintiffs’ adoption of a model that adopted the use of “aggregate damages calculations.” The defendants properly objected to the damages model because it failed to account for differences in injuries and losses among class members.

The use of an "average" price differential, even if capable of being proven, ignored the variations within the class and did not identify which end-purchasers would have saved money and which would have lost money if and when generic Nexium had entered the market. Even the district court acknowledged that under plaintiffs’ model certain class members who suffered no damages whatsoever would remain in the class.

Applying the reasoning of the D.C. Circuit in In re: Rail Freight Fuel Surcharge Antitrust Litig., one of the most important circuit court decisions applying Comcast, class certification would most likely have been denied because common questions of fact cannot predominate where there exists no reliable means of proving classwide injury in fact.

Plaintiffs’ expert conceded that the proposed class included tens of thousands of consumers who would continue to purchase branded Nexium after generic entry due to preference or their physician’s recommendation. Such brand loyalists would potentially have faced higher Nexium prices had generic Nexium been available.

Other consumers were not injured because their co-pays were the same for both generic and branded Nexium. Plaintiffs’ average price differential model ignored variations within the class and failed to distinguish between purchasers who would have lost money if and when generic Nexium would have entered the market and those who would not have lost money.

 In an almost identical situation involving a similar set of facts and the same plaintiffs’ expert, Dr. Meredith Rosenthal, a Philadelphia district court denied class certification in Sheet Metal Workers Local 1141 Health and Welfare Plan v. GlaxoSmithKline, No. 04-5898, 2010 WL 385552, at #27 (E.D.Pa. Sep. 30, 2010), class certification was denied by the Pennsylvannia district court (pre-Comcast) which rejected an analogous damages model proposed by Dr. Rosenthal in a case of alleged generic drug suppression involving the drug Wellbutrin SR.  There, as in the Nexium case, plaintiffs’ model failed to exclude uninjured class members. Because plaintiffs were unable to meet their burden of Rule 26(b)(3) that questions of law or fact common to class members predominated over any questions affecting only individual members, the district court denied class certification.

It is difficult to understand how the Massachusetts district court determined that the Nexium end-payors’ damages model met the “rigorous analysis” standard required by Comcast and Wal-Mart, particularly as there are many  thousands of plaintiffs in the class who have not suffered injury. Plaintiffs’ methodology indisputably failed to identify non-injured members of the class.  We look forward to the First Circuit’s analysis of the Rule 23(b)(3) issues presented by the case, assuming that an appeal is in the offing. 

AEP v. CT: Transcript of Supreme Court Argument

For those of you for whom reading the news and tabloid reports about the oral argument before the US Supreme Court in AEP et al v. Connecticut et al on April 19, 2011, was not enough, we attach the full unofficial transcript here


Eileen Millett is  Counsel to the law firm of Epstein Becker & Green, P.C. where she represents clients on environmental matters, including solid and hazardous waste and the Clean Water Act,  and counsels clients on general regulatory compliance questions, including issues related to toxic waste and water quality, permitting, emerging obligations under impending climate regulations and other federal, state, and local environmental statutes and regulations.  Ms. Millett previously served as Assistant Counsel with the Hazardous Waste Task Force at NYDEC and as General Counsel to the Interstate Environmental Commission, a tri-state water and air quality enforcement authority, where she conducted and managed litigation to control and abate water pollution and ensure adequate water and sewer infrastructure.  She teaches environmental law at the Syracuse University College of Law. 


Is the EPA over regulating and hurting business? Has EPA lagged behind in regulating Greenhouse Gases? The right answer depends on who you ask. But in deciding American Electric Power v. Connecticut the United States Supreme Court may indeed transform the way we produce and obtain energy. The case concerns the right of states and private parties to sue electric utilities under public nuisance theory for contributing to global warming. The United States Supreme Court will be asked to consider whether the plaintiffs have standing to bring the case, or whether the case presents a non-justiciable political question. In ordinary parlance, on standing — is there a connection between the utilities emissions’ and the injuries alleged, or does the causal chain depend on independent actions of others, and will the remedy sought, by itself, slow or reduce global warming; on political question —is the legislature and the Executive branches doing their jobs in a such a way that the Constitution envisions, making judicial intervention inappropriate. Said another way should we be about the business of sanctioning judicially engineered solutions to caps.

On April 19, 2011 in an expanded argument before only eight judges,with Justice Sotomayer recusing herself, six states, New York City and three private land trusts, sought an injunction in the form of an order to compel the reduction of carbon dioxide emissions and then to compel the reduction of those emissions from six major power producers, who they claimed, were the five largest emitters of carbon dioxide in the United States. 

By agreeing to take this case the U.S. Supreme Court is sending a strong signal that they will likely overrule this greenhouse gas public nuisance case, since they ignored the U.S. Solicitor General, who urged the Court to vacate the circuit decision, remand the case to the district court and to take note of the administration’s push to regulate. All this fuss, because states and private parties believe that power companies are creating a public nuisance by emitting greenhouse gases (GHGs) that contribute to global warming. Some states clearly feel that tracking and reporting requirements imposed by EPA do not go far enough, and what better time than now to place caps on emissions and reduce them. Proponents focused on reducing global warming mounted a multi-prong strategy to strike at the administration, Congress and the courts. The administration has indeed made efforts, but a change in the political climate, has diminished what was once a top priority. The House passed a bill that would have established a cap and trade program, but no law was enacted as the Senate could not agree on a proposal. EPA did enact some regulation, but obviously not enough to mollify the states; EPA’s regulation requires monitoring, reporting and registering, after which EPA will release that information to the public and enable us to see who indeed, are the largest emitters of carbon dioxide. These requirements will culminate in a national database and will enable EPA to establish a baseline. The question pending before the court is whether it is appropriate for the courts to step in. 

The District Court felt that the courts were not the appropriate forum. The Southern District Court of New York dismissed states and non-state plaintiffs (New York City and the private land trusts) complaint, holding that the plaintiffs’ claims would require the court to engage in the sort of balancing of competing public policy concerns that are the province of Congress and the President, and therefore presented a non-justiciable political question.  On appeal, a two-judge panel of the Second Circuit (the panel originally included Judge Sonia Sotomayor, who was elevated to the Supreme Court during the pendency of the case) vacated the district court’s dismissal and remanded the matter. The Second Circuit pointed to the lack of a detailed legislative or executive branch policy as evidence that courts could adjudicate such cases without interfering with the prerogatives of the political branches. Moreover, the court held that the obvious political ramifications of any decision that a court might render in the case did not necessarily transform the issue into a “political question.” The appellate court held that both the states and non-state plaintiffs could assert public nuisance. In particular, the non-state plaintiffs could assert such claims because of the widespread, interstate nature of the harm alleged. Finally, the Circuit held that the plaintiffs’ claims were not displaced by the Clean Air Act. Walking a fine land between the Supreme Court decision in Massachusetts v. Environmental Protection Agency, 549 U.S. 497(2007), which held that EPA has the authority under the Clean Air Act to regulate carbon dioxide as an air pollutant, and the principle that federal common law is displaced when Congress has spoken directly to a particular issue, the appellate court held that at least until EPA takes some specific regulatory action — beyond its proposed (but not final finding that GHGs endanger public health and welfare) —the statute does not regulate greenhouse gas emissions, or does not regulate such emissions from stationary sources. The day after the Second Circuit issued its opinion, EPA promulgated its Final Mandatory Reporting of Greenhouse Gas Rule. 

Before the Supreme Court ruling in Massachusetts v. Environmental Protection Agency, EPA had insisted that Congress had not given it the authority to deal with global warming, and EPA had cast doubt on the connection between GHGs and global warming, however, the Supreme Court ruling in case of Massachusetts v. Environmental Protection Agency, and granting certiorari in American Electric Power v. Connecticut demonstrates that the court is very willing to weigh in on climate change, or at a minimum provide some direction on the appropriate vehicle for such decision making.

The Supreme Court has for decades recognized a federal common law nuisance right, but has said that if Congress passes specific legislation that seeks to protect the public health and safety, the courts may and probably will have to allow those remedies to work in place of court crafted mandates. The states are seeking a policy outcome that the administration, Congress and EPA have not been willing to adopt. The outcome of American Electric Power v. Connecticut will have implications for two other common law public nuisance cases grounded in common law tort claims and alleging damage from climate change. Comer v. Murphy Oil, USA, 609 F.3d 1049 (5th Cir. 2010), and Native Village of Kivalina v. ExxonMobil Corp. 663 F.Supp.2d 863 (N.D. Cal. 2009).

The tone and tenor of the questioning a couple of weeks ago suggests that the court may well rule that EPA’s regulations of GHGs leaves no room for federal common law nuisance, which would invalidate any attempts to use federal common law nuisance to challenge GHG emissions, which leaves state common law nuisance, the CAA, amending the CAA and EPA regulating. Given that regulations are subject to ongoing legal challenges, climate change law may be uncertain for some time to come. Some have gone so far as to say that the CAA was not designed for the complexities of climate change. If you agree that the current vehicles available to us are inadequate to the task, we could be looking toward new legislation that will require attorneys to gear up and become knowledgeable at this evolving area of law so critically important to our energy needs.

Note: in May 2010, the EPA passed a rule to control greenhouse-gas emissions from light duty vehicles, and on January 2, the agency began to force power plants, oil refineries and other major emitters of greenhouse gases to obtain permits when making major modifications to their facilities or building new ones.

Welcome To The Toxic Tort Blogosphere!

Larry Schnapf recently started a blog on CommonGround concerning developments in environmental law.  Larry has been a thoughtful commentator on developments in this field for over 20 years. I look for Larry to continue providing wise counsel on thorny environmental issues.  We recently discussed the potential reach of the Supreme Court’s decision in Burlington Northern, which evaluated what is necessary to establish "arranger" liability under CERCLA.  In my view, the discussion of "arranger" liability is relevant only to CERCLA 107(a)(3) claims; it has no bearing on a PRP’s liability under CERCLA 107(a)(2).  In other words, a product manufacturer cannot escape CERCLA liability for contamination to the manufacturer’s former property by arguing that the relelases did not constitute "intentional steps" to dispose of a hazardous substance.  The PRP’s conduct in causing a release under (a)(1) or (a)(2)–whether intentional or merely negligent–is entirely irrelevant–always has been, always will be.  In contrast, in cases involving the sale of a product to a customer’s location, intent will now figure into any (a)(3) analysis.  Has the Supreme Court carved out what is basically a "product exception" to CERCLA liability? 

When Is A Cleanup “Voluntary” Under CERCLA?

 Nothing in §107(a)(4)(B) references “voluntary” cleanups, and nothing in that section restricts its application to “voluntary” cleanups or actors. Sections 107(a) and 113(f) of CERCLA allow private parties to recover expenses associated with cleaning up contaminated sites. Similarly, nothing in Atlantic Research and its progeny restricts the application of cost recovery actions under CERCLA §107(a)(4)(B) to “voluntary” cleanups.  If that is the case, what is the basis for the contention that only PRPs that perform cleanups voluntarily are entitled to pursue §107 cost recovery claims?

Section 107(a) defines four categories of PRPs and makes them liable for, among other things, “(A) all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe not inconsistent with the national contingency plan” and “(B) any other necessary costs of response incurred by any other person consistent with [such] plan,” §§107(a)(4)(A)-(B). This is the language on which the Supreme Court relied in its decision in Atlantic Research.Similarly,  Atlantic Research is best understood in the context of the development of the law of recovery of CERCLA response costs. Historically, some courts interpreted §107(a)(4)(B) as providing a cause of action for a private party to recover voluntarily incurred response costs and to seek contribution after having been sued. However, after the enactment of §113(f), which authorizes one PRP to sue another for contribution, many courts held §113(f) to be the exclusive remedy for PRPs. In Cooper Industries, Inc.,  the Supreme Court demonstrated the limitations of §113, and held that a private party could seek contribution under §113(f) only after being sued under §§106 or 107(a).  In Atlantic Research, the Supreme Court held that §107(a)(4)(B)’s plain language allows a PRP to recover costs from other PRPs, providing a cost recovery remedy to PRPs that had not been sued under §§106 or 107(a).

The Atlantic Research decision uses the term “voluntary” at times, but does not define the term or use it literally.  After all, only parties that do not have liability under CERCLA or other regulatory schemes truly engage in “voluntary” response actions. Rather, in Atlantic Research and its progeny the term “voluntary” is simply used to draw a contrast with private parties who have been sued under CERCLA §§106 or 107(a) and, therefore, pursuant to Cooper Industries, qualify to seek contribution from other liable parties under CERCLA §113.  Despite the Court’s use of the terms “voluntary” and “involuntary” to distinguish between payments recoverable under §107(a) and those recoverable under §113(f), the operative principle appears to be that §107(a) is available to recover payments only in cases where §113(f) is not. This is what a federal district trial court concluded recently in Appleton Papers Inc. v. George A. Whiting Paper Co., No. 08-C-16, 2008 WL 3891304 (E.D.Wis. Aug. 20, 2008).  In E.I. Dupont de Nemours & Co. v. United States, 508 F.3d 126 (3d Cir. 2007), the Third Circuit distinguished between “those who voluntarily admitted their responsibility” and those who have “in fact been held responsible (via adjudication or settlement with the EPA)” in discussing who may bring an action under CERCLA §107(f). Id at 133. Therefore, a PRP who conducts a dialog with a regulatory agency concerning how best to clean up a site does not make the PRP who admits liability and accepts responsibility any less a volunteer under CERCLA and applicable case law. In Champion Laboratories, Inc. v. Metex Corp., No. 02-5284, 2008 WL 1808309 (D.N.J. Apr. 21, 2008), the Hon. William H. Walls held that a plaintiff undergoing an ISRA  cleanup in New Jersey could pursue a CERCLA §107 claim.. The New Jersey district court clearly  did not find the pendency of an ISRA cleanup any impediment to plaintiff’s pursuit of a CERCLA §107 claim. The whole point of the Atlantic Research decision is that PRPs may, without regard to their own disposal activity, avail themselves of CERCLA §107.

Nothing in CERCLA §107(a)(4)(B) or any decision post-Atlantic Research conditions a party’s eligibility to bring a cost recovery action under CERCLA §107(a)(4)(B) on that party’s response action having been purely voluntary. Any other interpretation of “voluntariness” under CERCLA, if adopted, would have the anomalous result of barring the doors of the courthouse to CERCLA plaintiffs who cannot bring a CERCLA §113 claim (having not been the prior subject of a §106 or §107 claim by the United States), but whose cleanup may not have been “voluntary” in the strictest sense. It was clearly not the intention of Atlantic Research to limit access to the courthouse to only a restricted sub-class of CERCLA §107 plaintiffs.