Parko et al. v. Shell Oil Company et al.

Filing 81

ORDER granting 49 Motion to Certify Class. Signed by Judge G. Patrick Murphy on 9/3/2013. (ktc)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

)
)
)
)
Plaintiffs,
)
)
vs.
)
SHELL OIL COMPANY, EQUILON
)
)
ENTERPRISES LLC,
)
CONOCOPHILLIPS COMPANY, WRB
REFINING LP, CONOCOPHILLIPS WRB )
)
PARTNER LLC, and CENOVUS GPCO
LLC,
)
)
)
Defendants.
JEANA PARKO, DELBERT R. COBINE,
and JANICE A. COBINE,

CIVIL NO. 12-336-GPM

MEMORANDUM AND ORDER
MURPHY, District Judge:
Plaintiffs, owners of real property in the Village of Roxana, Illinois, allege on their own
and on behalf of a putative class, that Defendants, current and former owners and operators of an
oil refinery in Roxana, caused or allowed hazardous petroleum by-products to contaminate their
property (Doc. 5-2). Plaintiffs claim negligence, trespass, public nuisance, private nuisance,
unjust enrichment, and medical monitoring causes of action (Doc. 5-2). Currently pending before
the Court is Plaintiffs’ motion to certify class and for appointment of class counsel (Docs. 49, 50,
51). Plaintiffs’ proposed class definition is as follows:
All the persons (including non-governmental entities) who own real property in the
Village of Roxana, Illinois that includes any portion of any of the parcels on the
Village map listed in the table attached hereto as Attachment A.
(Doc. 49). “Attachment A” is a four-page table listing Roxana land parcels by block and lot
number, totaling 387 parcels (Doc. 49-1). Defendants oppose certification, arguing Plaintiffs

lack standing, the proposed class is fatally overbroad, and the proposed class fails to satisfy the
requirements of Rule 23 (Docs. 65, 66). For the following reasons, Plaintiffs’ motion to certify
class and for appointment of class counsel is GRANTED.
Standing
Standing is a jurisdictional requirement. Apex Digital, Inc. v. Sears, Roebuck & Co., 572
F.3d 440, 443 (7th Cir. 2009). It is “an indispensable part of the plaintiff’s case,” not merely a
pleading concern. Id. A plaintiff must show: “(1) that she has suffered a concrete and
particularized injury that is either actual or imminent; (2) that the injury is fairly traceable to the
defendant; and (3) that it is likely that a favorable decision will redress that injury.” Milwaukee
Police Ass’n v. Board of Fire & Police Com’rs of City of Milwaukee, 708 F.3d 921, 926 (7th Cir.
2013), quoting Massachusetts v. EPA, 594 U.S. 497, 517 (2007). Defendants claim Plaintiffs
here fail to show the first two elements (Doc. 66, p. 7). In order to show the requisite “injury in
fact,” a plaintiff “must establish that he has sustained or is immediately in danger of sustaining
some direct injury. Abstract injury is not enough.” Tobin for Governor v. Illinois State Bd. of
Elections, 268 F.3d 517, 528 (7th Cir. 2001), quoting City of Los Angeles v. Lyons, 461 U.S. 95,
101 (1983). To establish that the injury is “fairly traceable” to the defendant’s acts, a plaintiff
must establish a causal connection between the two and show that the injury did not result from
some independent act of a third party not before the court. Lujan v. Defenders of Wildlife, 504
U.S. 555, 560 (1992). A plaintiff does not, however, necessarily lack standing “merely because
the defendant is one of several persons who caused the harm.” Lac Du Flambeau Band of Lake
Superior Chippewa Indians v. Norton, 422 F.3d 490, 500 (7th Cir. 2005).
Defendants argue there is no cognizable injury because the evidence of contamination is
based on unreliable data from Plaintiffs’ expert Samuel Marquis Doc. 66, p. 7-8). According to

Defendants, Mr. Marquis’s model projections indicate that hazardous petroleum by-products are
present across Roxana, but an environmental engineering firm hired by Shell, URS Corporation,
took samples indicating that the majority of wells in Roxana were not impacted (Doc. 66, p. 14).
Essentially, URS Corporation’s groundwater reports contradict Mr. Marquis’s conclusions, and
URS has actually done sampling, so Mr. Marquis’s conclusions must be wrong…and without
evidence of town-wide contamination there is no actual injury. Defendants also excerpt named
Plaintiffs’ Jeana Parko and Janice Cobine who state to the effect: ‘the reason I think my property
is contaminated is my attorneys told me so,’ and ‘my property has never been tested for
contamination,’ respectively (Doc. 66, p. 14-15). If Plaintiffs don’t even know they’ve been
injured, Defendants reason, there cannot be a particularized, concrete injury.
Defendants also argue there is no causation, as Plaintiffs’ experts have not ruled out
alternative causes of contamination. Peter Zeeb, who produced a hydrogeologic expert report for
Defendants (analyzing in part Mr. Marquis’s report), opines that there are “other potential sources
of petroleum hydrocarbons that could have been released to the environment…located adjacent to
the purported class area and/or they are located along groundwater flow lines that would pass
through the potential source location and through the purported class area” (Doc. 66-7, pp. 22,
26-28).

The Illinois Emergency Management Agency database and contains at least five

incidents that might be alternative causes of hydrocarbon contamination, according to Mr. Zeeb:
(1) the release of 140 gallons of unleaded gasoline by the Clark Oil Company caused by a corroded
pipe and reported January 23, 1989; (2) the release of an unknown amount of gasoline at TruStreet
Properties, which was a self-service station, reported on September 27, 2006; (3) the release of 500
gallons of fuel oil by the Elfgen Land Trust reported on March 8, 1993; (4) the release of an
unknown amount of gasoline by Piasa Motor Fuels, a gasoline service station, reported on July 1,

2000; and (5) the release of an unknown amount of gasoline by Piasa Motor Fuels reported July 28,
2000 (Doc. 66-7, p. 26-28). Additionally, a report by Environmental Data Resources Inc.
indicates underground 300-gallon-capacity kerosene storage tanks registered with the State Fire
Marshall’s office exist in the purported class area (Doc. 66-7, p. 28).
Obviously, standing requires an injury. But even if Mr. Marquis’s report were entirely
inaccurate—that is, if his model projecting that Defendant-released hydrocarbons contaminate the
proposed class area were scientifically defunct—there would still be injury to satisfy the
injury-in-fact requirement here. Defendants’ main challenge to Mr. Marquis’s report is the
report’s supposed conflict with the sample data collected by URS Corporation.1 URS, of course,
collected that data for Shell as part of Shell’s effort to comply with the Illinois Environmental
Protection Agency’s (“IEPA”) permit requirements. See Village of Roxana, Illinois v. Shell Oil
Co., SDIL Case No. 12-577-GPM, Doc. 38-2. And the IEPA required such data-collection
because hazardous material released from the refinery had been detected in the groundwater. Id.
Defendants are trying to discredit Plaintiffs’ expert on the basis that the expert’s report conflicts
with their own petroleum byproduct dispersion reports. Hazardous oil byproduct from the
refinery has unequivocally been released into the proposed class-definite area. And Plaintiffs
allege that dispersion has injured them by damaging their properties’ value, damaging the use and
enjoyment of their properties, giving rise to economic loss, and giving rise to reasonable fears of
contracting resultant disease (Doc. 5-2). Plaintiffs have stated concrete, particular, and actual
1

In Plaintiffs’ reply to Defendants’ opposition to the motion for class certification, they included
‘rebuttal expert reports’ (Docs. 73, 74, 75). Defendants moved to strike those reports or to
re-depose Plaintiffs’ experts, as they claimed the rebuttal expert reports were submitted outside the
disclosure deadline (Doc. 78). The Court denied that motion, as this Order does not rely on
Plaintiffs’ experts’ rebuttal reports. Additionally, because the challenged expert submissions
have expressly not been relied-upon, the Court has not made any Daubert conclusions (nor were
Daubert motions received). See Messner v. Northshore University HealthSystem, 669 F.3d 802,
812 (7th Cir. 2012).

injury. Defendants’ argument that the named Plaintiffs were not aware of the injury until they
were told about the contamination does not negate standing. They are aware now, as they have
alleged continuing and present adverse effects of Defendants’ alleged misconduct. See Lujan,
504 U.S. at 564 and 561 (“At the pleading stage, general factual allegations of injury resulting
from the defendant’s conduct may suffice”).
By Defendants own categorization, Plaintiff’s allegedly standing-deficient injury is a
“factual problem” (Doc. 66, p. 14). However, “injury-in-fact for standing purposes is not the
same thing as the ultimate measure of recovery. The fact that a plaintiff may have difficulty
proving damages does not mean that he cannot have been harmed.” Abbott v. Lockheed Martin,
No. 12-3736, 2013 WL 4010226 at *4 (7th Cir. Aug. 7, 2013). The Court will not undertake a full
merits review where Plaintiffs have properly alleged injury. “[I]f [plaintiff’s] claim has no merit,
then he has not been injured by any wrongful conduct of the defendant; but if the consequence
were that he lacked standing, then every decision in favor of a defendant would be a decision that
the court lacked jurisdiction, entitling the plaintiff to start over in another court.” Bruggeman ex
rel. Bruggeman v. Blagojevich, 324 F.3d 906, 909 (7th Cir. 2003); see also Abbott v. Lockheed
Martin at *4 (“It is often the case in class litigation that by the time the remedial phase is reached,
some of the original plaintiffs will not be entitled to recover, either because they lost on the merits
or because they cannot show damages…But in such cases, the plaintiff has lost on the merits; we
do not reach back in time and enter a judgment dismissing the case for want of an Article III case or
controversy.”); MainStreet Or. Of Realtors v. Calumet City, 505 F.3d 742, 744 (7th Cir. 2007)
(“[S]tanding in the Article III sense does not require a certainty or even a very high probability that
the plaintiff is complaining about a real injury, suffered or threatened.”).
That other sources of contamination may exist does not destroy standing here. Lac Du

Flambeau Band of Lake Superior Chippewa Indians, 422 F.3d at 500. It may ultimately be
difficult to mete out harm caused by the Defendants’ release of chemicals versus harm caused by
the other local spills. But Plaintiffs have alleged their harm is traceable to oil byproduct
emissions from the refinery from 1918 through the present, and the refinery processes 306,000
barrels of crude oil per day (Doc. 5-2). See Sierra Club v. Franklin County Power of Illinois,
LLC, 546 F.3d 918, 927 (7th Cir. 2008) (“[W]e don’t know if the particulate matter from the plant
will blot out the sky or merely create a thin haze that’s not visible to the naked eye, or if the
airborne mercury will actually spread 45 miles to poison fish that [plaintiff] currently
consumes…We do know, however, that the plant will release some pollutants and that [plaintiff]
believes these pollutants will ruin her ability to enjoy Rend Lake and taint the surrounding area.”).
That Plaintiffs may have trouble proving damages does not preclude Article III standing. Abbott,
2013 WL 4010226 at *4. Plaintiffs have alleged both injury and causation so to satisfy the
standing requirement.
Definiteness and Ascertainability
A class must be definite enough to be ascertained. Oshana v. Coca-Cola Co., 472 F.3d
506, 513 (7th Cir. 2006), citing Alliance to End Repression v. Rochford, 565 F.2d 975, 977 (7th
Cir. 1977). If “the proposed class of plaintiffs is so highly diverse and so difficult to identify that
it is not adequately defined or nearly ascertainable…the plaintiff class cannot be maintained.”
Adashunas v. Negley, 626 F.2d 600, 604 (7th Cir. 1980). This ‘definiteness’ requirement is an
implied prerequisite of Rule 23(a). Rochford, 565 F.2d at 977. In Oshana, the Seventh Circuit
found the putative class too indefinite to be certified. 472 F.3d at 514. “Membership in
Oshana’s proposed class required only the purchase of a fountain Diet Coke from March 12, 1999
forward.

Such a class could include millions who were not deceived and thus [had] no

grievance.” Id. The Oshana class was overly broad because “countless members” of the class
could not have been harmed. Id.
That is not the case here. Defendants quibble with Plaintiffs’ class definition, as the
definition does not require that class members were impacted by alleged contamination and does
not reference any geographical zone of pollution (Doc. 66, p. 11). But the class is, by definition,
ascertainable—it consists of property owners in Roxana, particularly of 387 discrete parcels of
land. Roxana is approximately 6.8 miles in size with a population of only 1,500 people (Doc. 66).
‘Roxana property owners’ is definite enough. As in Mejdrech v. Met-Coil Systems Corp., “[t]he
class members’ homes occupy a contiguous area the boundaries of which are known precisely.”
319 F.3d 910 (7th Cir. 2003).

Further, of those property owners, it is unfathomable that

“countless numbers” could not have been harmed (assuming Plaintiffs contentions are true). All
the property is in proximity to the alleged byproduct emission. ‘Could not have been harmed’ is
different from ‘were not harmed.’ It is plausible that all persons who own real property in Roxana
suffered injury.
Rule 23 Analysis
The proposed class must satisfy the threshold requirements of Federal Rule of Civil
Procedure 23(a)—numerosity, typicality, commonality, and adequacy of representation; “as well
as one of the three alternatives in Rule 23(b).” Messner, 669 F.3d at 811. Here, Plaintiffs
proceed under Rule 23(b)(3) which requires that “common questions predominate over any
questions affecting only individual members and that class resolution be superior to other available
methods for fair and efficient adjudication of the controversy.” Amchem Products, Inc. v.
Windsor, 521 U.S. 591, 592-93 (1997). Defendants Shell Oil and Equilon Enterprises contend
that Plaintiffs’ motion for class certification ignores the Supreme Court’s recent decision in

Wal-Mart Stores, Inc. v. Dukes, which they characterize as a ‘drastic’ alteration to the analysis a
district court must undertake in determining a class’s certifiability (Doc. 66, p. 7). 131 S.Ct.
2541. While Wal-Mart is obviously binding, this Court does not see any great sea change in the
opinion. Both before and after Wal-Mart, what a plaintiff must do to successfully certify a class is
satisfy the requirements of Rule 23. “It is sufficient if each disputed [Rule 23] requirement has
been proven by a preponderance of evidence.” Messner, 669 F.3d at 811. And Plaintiffs have
done so here. As Justice Ginsburg explained in Amgen Inc. v. Connecticut Retirement Plans and
Trust Funds:
Although we have cautioned that a court’s class-certification analysis must be
“rigorous” and may “entail some overlap with the merits of the plaintiff’s
underlying claim,” Rule 23 grants courts no license to engage in free-ranging
merits inquiries at the certification stage. Merits questions may be considered to
the extent—but only to the extent—that they are relevant to determining whether
the Rule 23 prerequisites for class certification are satisfied.
133 S.Ct. 1184, 1194-95 (2013), quoting Mal-Mart Stores, Inc. v. Dukes, 131 S.Ct. at 2551.
Rule 23(a)(1)—Numerosity
A class action may be maintained only if “the class is so numerous that joinder of all
members is impracticable.” FED.R.CIV.P. 23(a)(1). “[P]laintiffs are not required to specify the
exact number of persons in the class, but cannot rely on conclusory allegations that joinder is
impractical or on speculation as to the size of the class in order to prove numerosity.” Marcial v.
Coronet Ins. Co., 880 F.2d 954, 957 (7th Cir. 1989).
Defendants argue that because many of the property owners caught by Plaintiffs class
definition will not have sustained injury, the class is not so large as to preclude joinder (Doc. 65, p.
37; Doc. 66, p. 23). This argument is a merits argument in disguise. Plaintiffs propose a class of
property owners in a discrete boundary in which over 1,000 people reside. The Court finds this to
be satisfactorily numerous. That some of these property owners may eventually be shown not to

have sustained property damage due to Defendants’ petroleum byproduct emission is not
dispositive of Rule 23(a)(1). “All of this is at best an argument that some class members’ claims
will fail on the merits if and when damages are decided, a fact generally irrelevant to the district
court’s decision on class certification.” Messner, 669 F.3d at 823.
Rule 23(a)(2)—Commonality
Rule 23(a)(2) requires a Court to find that Athere are questions of law or fact common to the
class,@ Fed.R.Civ.P. 23(a)(2), such that the class has Asuffered the same injury as@ the named
plaintiff. General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 157 (1982). Rule
23(a)(2) requires that the claims of the named plaintiff and the class:
depend on a common contention.YThat common contention, moreover, must be of
such a nature that it is capable of classwide resolutionBwhich means that
determination of its truth or falsity will resolve an issue that is central to the validity
of each one of the claims in one stroke.YWhat matters to class certificationYis not
the raising of common >questions=Beven in drovesBbut, rather the capacity of a
classwide proceeding to generate common answers apt to drive the resolution of
the litigation. Dissimilarities within the proposed class are what have the potential
to impede the generation of common answers.
131 S.Ct. 2541, 2551 (2011), quoting Richard A. Nagareda, Class Certification in the Age of
Aggregate Proof, 84 N.Y.U.L.Rev. 97, 132 (2009). A Asuperficial@ common question is not
enough, but Aeven a single common question@ can suffice for commonality.

Jamie S. v.

Milwaukee Public Schools, 668 F.3d 481, 497 (7th Cir. 2012) (internal citations and quotations
omitted); see also Spano v. Boeing Company, 633 F.3d 574, 588 (7th Cir. 2011) (ABut this
assumes that every question must be common, and, as we have discussed, that is not what Rule
23(a)(2) demands.@). A[A] common nucleus of operative fact is usually enough to satisfy the
commonality requirement.@ Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992). Courts
have found a common nucleus of operative fact in situations where a defendant has engaged in
standardized conduct toward members of the class. See, e.g. Keele v. Wexler, 149 F.3d 589, 594

(7th Cir. 1998) (listing cases).
Defendants argue there is no common question here, as the alleged pollution involves
many acts over a large period of time by many actors—including non-defendants (Doc. 66, p. 26).
They also argue there could be no classwide resolution because the impact to each property would
have to be proved individually, and any such impact will inevitably vary (Id. at 26-27).
Again, this is a merits-focused argument. If Plaintiffs cannot prove that Defendants
caused damage to their property, Defendants are not liable. But Plaintiffs do raise a common
question: did Defendants’ failure to contain petroleum byproduct at the refinery result in
contamination to Roxana property? If the answer is ‘yes,’ then each property owner will have to
show to what extent contamination damaged him. This does not destroy commonality. As
Judge Posner recently said, writing for the Seventh Circuit in Butler v. Sears, Roebuck and Co.,
(discussing Rule 23(b)(3)’s predominance requirement): “[T]he fact that damages are not
identical across all class members should not preclude class certification.” Nos. 11-8029,
12-8030, 2013 WL 4478200 at *5 (7th Cir. August 22, 2013). Answering the question that
underlies Plaintiffs’ claims may not be easy—there are competing expert damage models for
example—but there is a common question, and resolving that common question will provide a
common basis for liability for each class member.
Rule 23(a)(3), (a)(4)—Typicality, Adequacy
A named plaintiff=s claim is typical of the class Aif it arises from the same event or
practice or course of conduct that gives rise to the claims of other class members and his or her
claims are based on the same legal theory.@ Keele v. Wexler, 149 F.3d 589, 595, (7th Cir. 1998),
quoting De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983). Distilling

Page 10 of 15

the Supreme Court=s decision in General Telephone Company of the Southwest v. Falcon, 457
U.S. 147 (1982), the Seventh Circuit stated that the Astarting point@ for the typicality analysis is
Athat there must be enough congruence between the named representative=s claim and that of the
unnamed members of the class to justify allowing the named party to litigate on behalf of the
group.@ Spano, 633 F.3d at 586. “A class is disserved if its representative's claim is not typical of
the claims of the class members, for then if his claim fails, though claims of other class members
may be valid, the suit will at the least be delayed by the scramble to find a new class
representative. Alternatively, a class representative's atypical claim may prevail on grounds
unavailable to the other class members, leaving them in the lurch.” CE Design Ltd. v. King
Architectural Metals, Inc., 637 F.3d 721, 724 (7th Cir. 2011)
“[T]he usual practical significance of lack of typicality, as again explained in CE Design,
is that it undermines the adequacy of the named plaintiff as a representative of the entire class.”
Randall v. Rolls-Royce Corp., 637 F.3d 818, 824 (7th Cir. 2011). In determining whether the
interests of a class will be represented adequately, courts look to Athe adequacy of the named
plaintiff=s counsel, and the adequacy of representation provided in protecting the different,
separate, and distinct interest of the absentee members.@ Secretary of Labor v. Fitzsimmons, 805
F.2d 682, 697 (7th Cir. 1986) (en banc). The Rule 23(a)(4) determination also looks to the
adequacy of the named plaintiff, as Anamed plaintiffs who are subject to a defense that would not
defeat unnamed class members are not adequate class representatives.@ Randall v. Rolls-Royce
Corp., 637 F.3d 818, 824 (7th Cir. 2011); see also CE Design Ltd. v. King Architectural Metals,
Inc., 637 F.3d 721, 726 (7th Cir. 2011) (AA named plaintiff who has serious credibility problems
or who is likely to devote too much attention to rebutting an individual defense may not be an

Page 11 of 15

adequate class representative.@).
Defendants argue that named Plaintiffs’ injuries are atypical of the class because the
named Plaintiffs admitted at their depositions they had no basis, other than their attorneys’
representations, to believe their properties were contaminated or their property values decreased
(Doc. 65, p. 45; Doc. 66, p. 38). Neither, they argue, have Plaintiffs’ experts considered whether
the named Plaintiffs properties are representative of all Roxana properties (Doc. 66, p. 39). But
an expert opinion that the claims are typical is not necessary. Named Plaintiffs claim they
incurred property damage because Defendants allowed hazardous petroleum by-products to flow
from the nearby refinery. All purported class members have an identical claim. Defendants have
not defeated named Plaintiffs’ claims at this point, nor is there any indication that those Plaintiffs’
nascent understanding of the alleged contamination is atypical. Either Defendants’ acts caused
petrochemical contamination in Roxana resulting in negligence, trespass, public nuisance, private
nuisance, unjust enrichment, and the need for medical monitoring; or they didn’t. If they did,
each Roxana property owner may have different damages to prove. Nothing indicates that
named Plaintiffs’ claims diverge from the claims of unnamed Roxana property owners.
Defendants also claim named Plaintiffs the Cobines are particularly susceptible to a statute of
limitations defense (Doc. 65, p. 45). But there is no indication that the Cobines’ general
knowledge of refinery pollution is atypical of any area resident. Additionally, Plaintiffs claim
this is a continuing contamination, so a successful statute of limitations defense is hardly cut and
dried. See Village of Roxana v. Shell Oil Company, SDIL Case No. 12-577-GPM, Doc. 60. The
named Plaintiffs’ claims are no weaker than any potential plaintiffs.

The typicality and

adequacy requirements are satisfied.2
2

The Court knows Plaintiffs= counsel as experienced and qualified attorneys who are fully
Page 12 of 15

Rule 23(b)(3)BPredominance and Superiority
AWhen certification is sought under Rule 23(b)(3), as it is here, proponents of the class
must [] show: (1) that the questions of law or fact common to the members of the proposed class
predominate over questions affecting only individual class members; and (2) that a class action is
superior to other available methods of resolving the controversy.@ Messner v. Northshore
University HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012). To show predominance, plaintiffs
do not need to “prove that the predominating question will be answered in their favor” or “prove
that each element of [their] claim is susceptible to classwide proof.” Amgen, 113 S.Ct. at 1196.
Defendants argue that common questions do not predominate individual questions
because Plaintiffs reference an irrelevant standard of liability in their motion to certify the class,
Plaintiffs cannot show classwide exposure or contamination; and proof of damages will be
property-specific (Doc. 65, pp. 26-41; Doc. 66, p. 44).

Defendants harp on a particular

benchmark for “contamination” in Plaintiffs’ papers—benzene groundwater concentration at or
above 5 micrograms per liter, which is the State of Illinois’s threshold limit for maximum
allowable levels (Doc. 50, p. 5, 17). Indeed Plaintiffs state “the class Plaintiffs seek to certify
does not encompass owners of all of the property the benzene has reached. Rather, it is limited to
owners of property where benzene contamination in the groundwater is at of above 5
[micrograms per liter]” (Doc. 50, p. 17). The class the Court is certifying, however, is the class
bounded by the geographic limits above. The certified class does not reference the 5 microgram
per liter standard. Class members are property owners in the Village. The onus is on Plaintiffs
to prove the class members were injured. Plaintiffs may try to do so by reference to the 5
microgram per liter standard. But the Court does not at this time weigh in on the merits of this
capable of adequate class representation.
Page 13 of 15

method of proving damage. It is enough at this stage that Plaintiffs will rely on “common
evidence and methodology” to show injury. Butler, 2013 WL 4478200 at *4. Butler effectively
shuts down Defendants’ arguments against predominance. Common proof of damages is simply
not required for class certification. Judge Posner writes:
It would drive a stake through the heart of the class action device, in cases in which
damages were sought rather than an injunction or a declaratory judgment, to require
that every member of the class have identical damages…the fact that damages are
not identical across all class members should not preclude class certification.
Otherwise defendants would be able to escape liability for tortious harms of
enormous aggregate magnitude but so widely distributed as not to be remediable in
individual suits.
Id. at *5. Individual concerns do not outweigh common ones here.
Defendants argue that the ‘myriad’ individualized issues in the case militate against
finding that a class action is the superior method for adjudication (Doc. 65, pp. 35-37; Doc. 66,
pp. 39-41). “[C]lass action treatment is appropriate and is permitted by Rule 23 when the
judicial economy from consolidation of separate claims outweighs any concern with possible
inaccuracies from their being lumped together in a single proceeding for decision by a single
judge or jury.” Mejdrech v. Met-Coil Systems Corp., 319 F.3d 910, 911 (7th Cir. 2003). The
questions of whether hazardous petroleum byproduct pervades village property and of whether
Defendants are complicit in any resultant damage are best suited to class-wide resolution.
Answering these questions across multiple fact-finders would do nothing to increase the
“accuracy of the resolution” and would, indeed, be redundant and an unnecessary strain on the
dockets of multiple judges. Medjrech, 319 F.3d at 911. Neither do the apparently related state
actions make the class device any less satisfactory here (Doc. 66, p. 41). Plaintiffs in those cases
are represented by able counsel, and, significantly, may opt-out of this class. See Harkins v.

Page 14 of 15

Riverboat Services, Inc., 385 F.3d 1099, 1101 (“Compare class actions under Fed.R.Civ.P.
23(b)(3), in which the consent of class members is not required; instead they have a right to be
notified of the class action and to opt out of it and seek their own remedies.”); see also Abbott v.
Lockheed Martin, 2013 WL 4010226 at *9 (“But this court has never held, and Spano did not
imply, that the mere possibility that a trivial level of intra-class conflict may materialize as the
litigation progresses forecloses class certification entirely.”).
Conclusion
The requirements of Federal Rule of Civil Procedure 23 are satisfied and Plaintiffs’
motion for class certification is GRANTED. The Court hereby CERTIFIES the following
class:
All persons (including non-governmental entities) who own real property in
the Village of Roxana, Illinois that includes any portion of any of the parcels
on the Village map listed in the table attached hereto as Attachment A.
This certification is conditional and may be altered or amended before a decision on the merits.
The Court APPOINTS Jeana Parko, Delbert R. Cobine, Janice A. Cobine, and Rodger
Jennings as Class Representatives. The Court further APPOINTS the law frims of Simmons
Browder Gianaris Angelides & Barnerd LLC and Hanly Conroy Bierstein Sheridan Fisher &
Hayes LLP as Class Counsel.

IT IS SO ORDERED.
DATED: September 3, 2013
s/ ZA ctàÜ|v~ `âÜÑ{ç
G. PATRICK MURPHY
United States District Judge

Page 15 of 15