Order Michigan Supreme Court
Lansing, Michigan
December 18, 2009 Marilyn Kelly,
Chief Justice
137949 Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
ALICIA BRINDLEY, MAX FRANKLIN, Stephen J. Markman
and BARBARA FRANKLIN, Diane M. Hathaway,
Plaintiffs-Appellees, Justices
v SC: 137949
COA: 286155
Wayne CC: 07-704488-NZ
SEVERSTAL NORTH AMERICA, INC.,
Defendant-Appellant.
_________________________________________/
By order of March 23, 2009, the application for leave to appeal the November 12,
2008 order of the Court of Appeals was held in abeyance pending the decision in Henry v
Dow Chemical (Docket No. 136298). On order of the Court, the case having been
decided on July 31, 2009, 484 Mich 483 (2009), the application is again considered and,
pursuant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we REMAND this case
to the Wayne Circuit Court for proceedings consistent with this order. It appears that the
circuit court made an independent determination that the plaintiffs at least alleged a
sufficient factual and legal basis to support each of the prerequisites provided in MCR
3.501(A)(1), as required by Henry, 484 Mich at 505, and it does not appear that it abused
its discretion in so doing. The circuit court prefaced its analysis, however, with the
statement that “the trial court is required to accept the allegations made in support of the
request for certification as true.” This statement is inconsistent with the standard adopted
in Henry “to the extent that it could be read to require courts to accept as true plaintiffs’
bare assertions that the class certification prerequisites are met.” Henry, 484 Mich at
505. In this case, as in Henry, the Court will refrain from looking behind the circuit
court’s analysis to guess whether the circuit court actually utilized the correct standard.
See Henry, 484 Mich at 506-507. Therefore, although it appears that the circuit court’s
analysis of the class certification prerequisites in MCR 3.501(A)(1) was proper, on
remand the circuit court may revisit its analysis if it determines that its original decision
depended on an analytical framework that is inconsistent with this Court’s decision in
Henry. The circuit court may, in its discretion, conduct an evidentiary hearing regarding
these matters if it deems such appropriate.
We do not retain jurisdiction.
2
CORRIGAN, J. (dissenting).
I would direct the circuit court to clarify its reasoning in ruling that plaintiffs have
met their burden to establish that the class certification requirements of MCR 3.501(A)(1)
are met in light of Henry v Dow Chem Co, 484 Mich 483 (2009). The record before us
does not establish that the circuit court’s decision granting certification comported with
Henry. To the contrary, the record reveals that the court did not truly analyze the
certification criteria. Moreover, it expressly relied on the wrong standard: Neal v James,
252 Mich App 12 (2002), was overruled by Henry, supra at 505 n 39. Given the circuit
court’s errors, we should direct the court to comply with Henry on remand. The majority
order merely invites the circuit court to “revisit its analysis if it determines that its
original decision depended on an analytical framework” inconsistent with Henry. This
order abdicates our appellate duties. It effectively affirms the circuit court’s first decision
by permitting the court to rubber-stamp it on remand.
The trial court’s reliance on Neal v James
First, the circuit court clearly relied on the now-repudiated Neal standard in its
opinion and order granting class certification, in which it cited Neal and stated: “When
evaluating a motion for class certification, the trial court is required to accept the
allegations made in support of the request for certification as true.” Henry explicitly
rejected this approach. Id. at 505 n 39 (“[T]o the extent that Neal could be read to require
a trial court to accept as true a plaintiff’s bare assertion that a class certification
prerequisite is met, we overrule Neal.”) Further, the circuit court confirmed that it relied
on the Neal standard when it denied defendant’s motion for reconsideration, in which
defendant challenged the court’s reliance on Neal. Thus, the court clearly based its
decision on this incorrect standard. For this reason alone, I would direct the court to
revisit its analysis on remand in light of Henry.
The class certification criteria in MCR 3.501(A)(1)
Second, I disagree that “[i]t appears that the circuit court made an independent
determination that the plaintiff at least alleged a sufficient factual and legal basis to
support each of the prerequisites provided in MCR 3.501(A)(1), as required by Henry,
484 Mich at 505.” To the contrary, the court’s written reasoning is sparse—particularly
with regard to the criteria in MCR 3.501(A)(1)(c)-(e). It supplied no oral reasoning;
although the written opinion (incorrectly) states that the court “ha[d] heard oral
argument,” no hearing was ever held. Indeed, defendant raised the lack of hearing as a
ground for reconsideration.1
1
In comparison, I note that in Henry the trial court heard extensive oral arguments
regarding the class certification question. See Henry, supra at 514 (YOUNG, J.,
concurring in part).
3
With regard to element (c) of MCR 3.501(A)(1) (typicality), the circuit court
reasoned:
[A]lthough there are factual differences between Plaintiff’s claims
and those of the putative class, her claims arise out of the same course of
conduct that gives rise to the claims of the other class members, i.e.,
Severstal’s alleged discharge of fallout and dust. Furthermore, Plaintiff’s
claims and the claims of the putative class members are based on the same
legal theories, nuisance and negligence. Accordingly, the Court finds that
the requirement of typicality has been met.
This “analysis” is scarcely distinguishable from the typicality analysis we rejected in
Henry, supra at 506 n 40, stating:
For MCR 3.501(A)(1)(c), the typicality prerequisite, the trial court’s
analysis consisted of a restatement of the standard; a statement that
“plaintiffs contend” that their claims “arise from the same course of
conduct” and that “they share common legal and remedial theories”; and a
quote from a federal district court case stating that the typicality
requirement may be satisfied if “there is a nexus between the class
representatives’ claims [and] defenses and the common questions of fact or
law which unite the class.” It is unclear from the trial court’s analysis
whether it independently determined that the plaintiffs alleged basic
questions of law and fact sufficient to support their allegation that their
legal remedial theories were typical of those of the class.
Similarly, for element (d) (adequacy of representation), the circuit court stated in
full: “MCR 3.501(A)(1)(d) focuses on whether the class representatives can fairly and
adequately represent the interests of the class as a whole. In the present case, for the
reasons stated in Plaintiff’s brief, the court believes that Plaintiff will fairly and
adequately protect the class.” The Henry opinion renders this inadequate. Henry rejected
the trial court’s similar “analysis” of element (d), stating:
In the circuit court’s analysis of MCR 3.501(A)(1)(d), the adequacy
of representation prerequisite, it stated that “[t]he representative parties will
fairly and adequately assert and protect the interest of the class.” It
supported this conclusion by reasoning that “no proof has been submitted to
this Court that would indicate that the Plaintiffs herein, the representative
parties, would not fairly and adequately assert and protect the interest of the
class.” In other words, the circuit court did not perform an analysis that
sufficiently shows that it independently determined that the plaintiffs would
adequately represent the class and also potentially shifted the burden to
4
defendant to show that plaintiffs would not adequately represent the class.
[Henry, supra at 506 n 40.]
I also question the discussion of element (e) (superiority), in which the court
opines:
For the reasons set forth in Plaintiff’s brief, this Court is of the
opinion that in this case, a class action is superior to other available means
of adjudication. Although the Court is well aware that “mini-trials” will be
necessary with respect to issues of proximate causation and damages, and
that such mini-trials may also involve the allocation of fault, the
determination of common issues of liability via class action treatment is
more efficient th[a]n joining hundreds, if not thousands, of individual
plaintiffs.
As with elements (c) and (d), and particularly because the court relies primarily on
plaintiff’s brief, the court did not independently determine under element (e) that a class
action is superior to other available means of adjudication, and it potentially shifted the
burden to defendant to disprove this element.
Conclusion
Accordingly, I would direct the circuit court to clarify its class certification
decision on remand in light of Henry. Not only were many portions of the court’s
discussion brief and conclusory, but its conclusions with regard to each criterion for
certification should be clarified because the court explicitly relied on the repudiated Neal
standard. This Court’s order is effectively meaningless because it merely invites the
circuit court to revisit its analysis if the circuit court so chooses. I therefore invite the
circuit court to revisit its analysis in full, and in writing, for the benefit of the parties and
future appellate courts.
YOUNG and MARKMAN, JJ., join the statement of CORRIGAN, J.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
December 18, 2009 _________________________________________
s1215 Clerk