Case Information
*1 Before W OOD Chief Judge , AND P OSNER S YKES , Cir cuit Judges .
P OSNER Circuit Judge
. court certified owners Roxana (a tiny village southwestern Illinois, across Mississippi River St. Louis) *2 13 8024 against Shell Oil Company, which (together with Shell sub ‐ sidiaries also joined defendants) until owned and operated oil refinery (the Wood River Refinery, built 1918) adjacent to village. The also against ConocoPhillips (and some its subsidiaries), which bought refinery Shell year and its current owner and operator. The plaintiffs claim leaked contaminants into un der members’ homes. The suit, diversity suit, charges nuisance related torts violation Illinois law, seeks way remedy meas ured primarily effect contamina members’ properties. defendants petitioned us leave to appeal class. Fed. R. Civ. P. 23(f). We decid ed to grant request order to clarify law, Blair v. Equifax Check Service, Inc. , F.3d (7th Cir. 1999), with respect courts’ responsibility perform “rigorous analysis” before determining predominate over differ among members. Comcast Corp. Beh rend (2013); General Telephone Co. Southwest Falcon U.S. (1982). Because peti tions response address issue compre hensively, we proceed resolve issue without requiring further briefing. challenge—and we’ll discuss
challenge briefly getting predomi nance—the judge’s ruling large satisfy “numerosity” requirement Rule 23(a)(1) (that it’s too large joinder *3 be a feasible alternative to a class action). There appear to be about class members. The defendants do not argue such a class small enough joinder to be a feasible, let alone superior, alternative to class action. But they say number the class members were not injured—either their was not contaminated leakage from the refinery or the did the property—and so lack standing to obtain relief therefore don’t belong the class. And if class mem bers subtracted, the defendants contend, are longer members to make class superior procedural vehicle to joinder plaintiffs.
We reject the argument. To require the judge to determine each members the sustained injury—on theory not, so lack standing, so should be dropped class, denied remaining plain tiffs forced sue (whether jointly individually)— process unworkable; process require, this case, trials before certified. The defendants thus asking us put cart horse. How many (if any) members valid claim determined after certified. identified question
class—namely defendants’ “failure contain petroleum byproduct result[ed] contamina Roxana property.” argue rul ing does establish predominance entire over vary among members class. predominance course re *4 13 ‐ 8023 & 13 ‐ 8024 quirements if are sought. Fed. R. Civ. P. 23(b)(3).
Predominance qualitative rather than quantitative concept. It not determined simply by counting noses: determining are more common issues or more individual issues, regardless relative importance. In Amgen Inc. v. Connecticut Retirement Plans Trust Funds, S. Ct. 1184, (2013), Supreme Court said re quirement predominance not satisfied “individual questions … overwhelm questions common class.” And Amchem Products, Inc. Windsor, U.S. (1997), Court said “predominance inquiry tests proposed classes sufficiently cohesive war rant adjudication representation.” See In re Inter Op Hip Prosthesis Liability Litigation, F.R.D. (N.D. Ohio 2001) (“common issues need predominate, not outnumber individual issues”).
Predominance common members, like requirements action, goes efficiency al ternative suits. If resolving will not greatly simplify litigation judgment or settle ment claims hundred or thousands claimants, complications, unwieldiness, delay, danger treatment would expose defendant defend ants settlement forcing risk not costs worth incurring.
Mere assertion counsel pre dominate enough. That too facile. Certifica virtually automatic. so Rule “does set forth mere pleading standard.” Wal Mart Stores, Inc. Dukes (2011). Rather, when factual dis *5 & 13 8024 5 putes bear vital (that be allowed be litigated as action), such as predominance, court must “receive … and resolve disputes deciding certify case.” Szabo v. Bridgeport Machines, Inc. , F.3d (7th Cir. 2001); Comcast Corp. v. Behrend supra , 1432; Butler Sears, Roebuck & Co. F.3d 800– (7th Cir. 2013). defendants contend alleged by occurred over year period and involved acts omissions charged against six defendants, and maybe other polluters as well (because area which located industrial, identified oil leaks by gas stations companies), consequence members could well experi enced different levels contamination, implying different damages, caused different polluters. See Gates Rohm Haas Co ., F.3d (3d Cir. 2011). Nor it be as sumed every member has experienced same diminution value his property even every one experienced same level contamination. For greater variance values (about which made findings), less likely contamina or most properties same amount money same percentage market value. Also doesn’t appear small claims suits practical matter can proceed (e.g. overcharges $5.50 rental cars). may huge, but may well sizable (or joined) suits feasible alternative action.
It’s not even clear that the have identified issue. Their expert, hydrogeologist, intends measure the benzene levels in the groundwater beneath the members’ property, even though their water supply doesn’t come from groundwater (which they don’t even own, though they right use it, Bridgman Sanitary District Decatur N.E.2d 312–13 (Ill. App. 1987)) but instead from Roxana’s uncon taminated aquifer. there is no suggestion that vil lage supplies them aquifer because groundwa ter is polluted (though what difference property owners is unclear). If expert’s is rejected, there will no basis for claim benzene levels in cause loss property values alleges, loss has not specified.
Real estate values taken drubbing in recent years, with collapse housing bubble ensuing fi nancial crisis. It can’t assumed decline in residential property Roxana (if in fact there’s been de cline) result proximity one knows been leaking contaminants last years without causing detectable harm. There many things commonly found soil beneath rural suburban houses homeowners very much like not enter their home (such as earthworms, fungi, ants, beetles, slugs, radon, chemical residues, thousands different types microbe— groundwater), but long danger such unwanted visitors underground presence values. Benzene water supply thing; does feed into supply quite another. *7 judge did explore any of these issues. He treated predominance pleading requirement. He thought it at stage the intend to rely on and single methodology to prove both injury and damages, and the evi ‐ dence the methodology sound and convincing is question going to the strength the plaintiffs’ case should postponed to summary judgment proceedings trial. But if intentions (hopes, in words) were enough, predominance, check on casting lawsuits in the ac tion mold, would out the window. Nothing is simpler than unsubstantiated allegation. A judge may “refus[e] entertain arguments against respond ents’ model bore propriety certi fication, simply because arguments would per tinent merits determination.” Comcast Corp. Behrend supra at 1432–33. should investi gated realism plaintiffs’ injury damage model in light defendants’ counterarguments, end taken evidence. For if right, there is issue, will vary homeowner homeowner: is there benzene groundwater beneath his home level concentra if were drunk endanger health (and any possibility enter supply); what source benzene groundwa ter beneath given home (that who polluter who caused become polluted); presence benzene concentration cause any oth er form harm; has presence reduced his property; so, how great reduction been. It difficult how these can managed *8 ‐ format. But in any event they must be en ‐ gaged by judge he can a responsible determination of whether certify a class.
So certification order must be reversed, with direc ‐ tions that revisit in con formity with analysis in this opinion. But in so ruling we unsay nothing that we said in Mejdrech Met Coil Systems Corp ., F.3d (7th Cir. 2003), where we approved in was superficially like this one cause involved homeowners who were com plaining about caused in case by solvent called TCE (trichloroethylene), which lieved dangerous human health which had been leaked by nearby storage container. We said “the questions Met Coil leaked TCE violation law TCE reached soil neath homes members are members. first question particularly straightfor ward, but second only slightly less so. mem bers’ homes occupy contiguous area boundaries which known precisely. … [T]he two questions … especially complex.” Id . at 911–12.
In case unlike this one, was single source pollution (the storage container). case unlike leakage noxious solvent was claimed contaminated water supply, noted court. Mejdreck Lockformer Co. No. C 6107, WL at *1, *3 (N.D. Ill. Aug. 2002). Our opinion indi cates homes relied wells affected TCE groundwater, F.3d yet fall homes because *9 adjacent homes. case presented no theory, let alone credible evidence, connection between leaks proper ty values, between specific leaks property values, justify behalf owners whose properties sit above ground contains amount considered dan gerous human health regulatory authorities (more than micrograms per liter)—if drunk. But, repeat, yet anyway, any ever drunk.
R EVERSED .