Class action lawyers are well aware that the burden to
affirmatively demonstrate compliance with Rule 23 rests on the
plaintiffs. Over the years, courts have elaborated somewhat on the
burdens plaintiffs must meet for
numerosity and
commonality, but have remained somewhat vaguer when it comes to
typicality.
Last week, a trial court in the Eastern District of Missouri
took a leap into that void in Henke v. Arco Midcon, L.L.C., No.
4:10CV86, 2014 U.S. Dist. LEXIS 31810 (E.D. Mo. Mar. 12, 2014).
Henke was an environmental class action alleging groundwater
contamination from leaks from an oil pipeline. There were a number
of problems with the proposed class, but among the, the court found
that the named plaintiffs were not typical. In addition to
reviewing the evidence that the defendants provided of the
plaintiffs' unique circumstances, the court also took the
plaintiffs to task for not meeting their burden in the first place.
And what did that burden look like?
