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A Better Partnership
February 21, 2009

MSC Oral Argument: Henry v. The Dow Chemical Company

On March 3, 2009, the Michigan Supreme Court will hear oral argument in Henry v. The Dow Chemical Company, on whether the "rigorous analysis" requirement for class certification in federal courts also applies to state courts, if so whether the circuit court conducted a proper "rigorous analysis," and whether class certification was appropriate. This is the second time that the Henry case has come before the Michigan Supreme Court. The order granting leave to appeal can be found here. The briefs of the parties and the seven amici can be found here.

The Henry case arises from a group of Midland and Saginaw County residents' attempt to bring a class action against Dow for Dow's alleged release of dioxin into the Tittabawasee River. The Saginaw County Circuit Court certified the class, and Dow obtained interlocutory review by the Court of Appeals. On appeal, Dow challenged the class certification arguing that the circuit court failed to apply the rigorous analysis required to determine whether the requirements of class certification were met, that individual issues predominated over common issues on questions of liability, and that individual issues predominated over common issues on questions of damages. The Court of Appeals in a divided decision, concluded that class certification was appropriate for issues of liability (opinions of Judges Fort Hood and Meter), and that individual issues predominated on questions of damages (opinions of Judges Meter and Kelly). The Michigan Supreme Court granted leave to appeal on November 5, 2008.

On appeal to the Michigan Supreme Court, Dow's argument that the United States Supreme Court's "rigorous analysis" requirement is applicable to state class actions because it is required by due process is supported by five amicus briefs from various industry groups include the Defense Research Institute, the Michigan Defense Trial Counsel, the National Association of Manufacturers, the U.S. Chamber of Commerce, and the Product Liability Advisory Council. The plaintiffs are supported by amicus briefs from the plaintiffs' class in Brindley v. Severstal North America, Inc., a Wayne County Circuit Court action in which a class was certified, and a joint submission by a number of environmental groups.

Disclaimer: WNJ represents Dow and the Michigan Defense Trial Counsel in other matters.

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