Summary of a Recent
Judicial Development in
Environmental Law

Lobstermen Satisfy Federal Procedural Rules to Bring Class Action
against Insecticide Manufacturer

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Fox v. Cheminova, Inc., 213 F.R.D. 113 (E.D.N.Y. 2003), the United States District Court for the Eastern District of New York granted class certification sought by group of commercial lobstermen from New York and Pennsylvania. The lobstermen brought the instant action against the defendants, manufacturers and producers of mosquito insecticides, blaming the defendants for an increase in lobster mortality. The court found that the plaintiffs met the requirements for class certification.

Background

In September 1999, plaintiff lobstermen in New York and Pennsylvania began to notice an increased lobster mortality rate in Long Island Sound, which allegedly damaged their ability to trap and sell lobsters. Id. at 117. The defendants manufactured and sold mosquito insecticides used by New York City to control the spread of West Nile Virus. Id. On August 25, 2000, the plaintiffs filed the instant suit blaming the defendants for the increase in lobster mortality. Id. On March 1, 2002, they sought to certify the following class:

All persons or other legal entities that possess or possessed a valid commercial fishing license or licenses issued by the State of New York and/or the State of Connecticut which permitted them to catch and take lobsters . . . from the waters of the Long Island Sound within the territories of the State of Connecticut and/or the State of New York for commercial purposes or for purposes of sale, and who, beginning in September 1999, suffered or sustained legally cognizable damages or suffered a legally cognizable harm as a result of the application of insecticides . . . manufactured by the defendants to this lawsuit in the State of New York and the State of Connecticut that began in September 1999.
Id. at 120.

The defendants objected to the plaintiffs' class certification request. Id. at 120. The court denied the plaintiffs' request without prejudice to renew, and ordered the plaintiffs to "produce proof of a sufficient number of class members who suffered damages in excess of $75,000 during the operable period, thereby enabling [the court] to reasonably conclude that Plaintiffs [would] have no difficulty satisfying the numerosity requirement of [Federal Rule of Civil Procedure 23(a)]." Id. at 121. In response, the plaintiffs filed an affidavit from a natural resource management expert in support of their motion for certification. Id.

Arguments

The defendants argued "that the data submitted by Plaintiffs fail[ed] to show that pesticides were applied to any surface waters in Long Island Sound," and they "claim[ed] that the products at issue in this lawsuit represent[ed] only a small percentage . . . of all federally-registered, restricted-use pesticides applied in the New York area in 1999." Id. at 118-19. The defendants also argued that the "lobster die-off" began before the city began applying pesticides to stop the spread of West Nile. Id. at 119. Finally, the defendants claimed that certification was inappropriate because the "Plaintiffs' claims [were] based upon the application of different products, at different times, under different conditions, to different areas of Long Island Sound," and they "maintain[ed] that Plaintiffs all employ[ed] different fishing methods, fish[ed] in drastically different ecosystems across Long Island Sound, and suffered differing harms from differing sources." Id. at 120. In sum, the defendants asserted that the plaintiffs failed to satisfy the requirements of Federal Rule of Civil Procedure (FRCP) 23.

Analysis and Holdings

Before certifying a class for class action litigation, class representatives must satisfy the following requirements of FRCP 23(a):

(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
Id. at 121-22.

Additionally, class representatives must satisfy one of three requirements listed in FRCP 23(b). Id. at 122. In the case at bar, the plaintiffs sought to satisfy subsection 3 of the rule, which requires a court to find that "questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." Id.

After reviewing the evidence presented the court held that the plaintiffs satisfied FRCP 23(a) because they showed: (1) there were "likely over three hundred . . . lobstermen who [qualified] for inclusion in this class"; (2) there were "many common questions of law and fact that Plaintiffs, and potential class members, share[d]"; (3) the "claims of the class representatives, like the potential class members, [were] predicated upon the massive lobster mortality beginning in September 1999 allegedly caused by the presence in Long Island Sound of various pesticides manufactured by Defendants"; and (4) "the named representatives ha[d] and [would] appear voluntarily to all proceedings and . . . [would] not act in a manner contrary to the class members." Id. at 122-27.

The court then addressed whether the plaintiffs satisfied FRCP 23(b), which required that the plaintiffs to show that "questions of law or fact common to the members of the class predominate[d] over any questions affecting only individual members, and that a class action [was] superior to other available methods for the fair and efficient adjudication of the controversy." Id. at 127-28. Because the "question of causation [was] common to all class members" and "the massive lobster die-off commencing in mid-September 1999 [was] analogous to a single catastrophic event," the court found that the plaintiffs satisfied the predominance requirement. Id. at 129-30. The court also found that the plaintiffs satisfied the superiority requirement because if the class was not certified, each individual lobstermen would bring a separate suit, thus destroying the efficient adjudication of the plaintiffs' claims. Id. at 130.

The case was decided on February 28, 2003.