and that two of the members of the class have a conflict of
interest with others in the putative class because they own several

pieces of property and “presumably rent” it to other members of the

class. First, class certification should not be denied by
speculative suggestions of potential conflicts. Rosario v.
Livaditis, 963 F.2d 1013, 1018-19 (7th Cir. 1992). Second,

Defendants’ other argument regarding the differing levels of
contamination goes to the ultimate merits of the case and has
already been addressed. Third, Defendants have not challenged the
adequacy of Plaintiffs’ counsel nor asserted that the
representatives do not have sufficient interest in the outcome of
the case, and the Court concludes that Plaintiffs’ counsel appear
qualified to litigate this action and have been vigorously
litigating this action thus far.
Rule 23 (b)

The Court will first address class certification under
Rule 23(b) (3). An action may be maintained as a class action under
Rule 23(b) (3) where the court finds that the questions of law or
fact common to the members of the class predominate over any
questions affecting only individual members and that a class action
is superior to other available methods for the fair and efficient
adjudication of the controversy. To certify a class under this
section, the Court must also examine the interests of the class

members in individually controlling the prosecution or defense of

-13-


Rule 23(a), which include numerosity, typicality, commonality, and
adequacy of representation. Harriston v. Chicago Tribune Co., 992
F.2d 697, 703 (7th Cir. 1993). Furthermore, at least one of the
Subsections of Rule 23(b) must also be satisfied. In making this
determination, the Court does not consider the merits of the case
but instead, as with a motion to dismiss, takes the allegations in
the complaint as true. Eisen v. Carlisle & Jacquelin, 417 U.S.
156, 177, 94 S. Ct. 2140, 2152 (1974). Plaintiff shoulders the
burden of demonstrating that a class exists, and district courts
have broad discretion in ruling on a plaintiff’s request. Mira v.
Nuclear Measurements Corp., 107 F.3d 466, 474 (7th Cir. 1997).

In addition to the four express requirements in Rule 23, there
are two implied requirements: first, an identifiable class must
exist (the “definiteness” requirement) and second, the named
representatives must be members of the class. Gomez v. Illinois
St. Bd. of Educ., 117 F.R.D. 394, 397 (N.D. Ill. 1987). An
identifiable and definite class exists if “its members can be
ascertained by reference to objective criteria.” National
Organization for Women v. Scheidler, 172 F.R.D. 351 (N.D. Ill.
1997), citing Gomez v. Illinois St. Bd. of Educ., 117 F.R.D. 394,
397 (N.D. Ill. 1987). A class will satisfy the definiteness
requirement as long as it is defined in terms of objective criteria
like the defendants’ conduct as opposed to the state of mind of the

parties. Alliance to End Repression v. Rochford, 565 F.2d 975, 977


but reserve the determination of monetary damages, if needed, for
individualized treatment. It is, therefore, unnecessary to
evaluate class certification under Rule 23(b)(1) and (2).
CONCLUSTON
For the foregoing reasons, Plaintiffs motion for class

certification pursuant to Rule 23(b ) is GRANTED.
IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court

Date: February 23, 2001

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Autoplex, Inc., No. 00 C 442, 2000 WL 1280904, at *3 (N.D. Ill.
Sept. 1, 2000). Here, Plaintiffs allege that over one hundred
homes are affected, and the class, therefore, consists of more
than two hundred people. Further, Plaintiffs have submitted a list
of 130 clients who live in the proposed geographical area. This is
sufficient to satisfy the numerosity requirement.
Commonality

Second, Rule 23(a) (2) requires that the class representatives’
claims possess “questions of law or fact common to the class.”
Plaintiffs must demonstrate that there is at least one question of
law or fact common to the class. Rivera, 2000 WL 1280904, at *4.
The common questions, however, need not be identical, and a “common
nucleus of operative fact is usually enough to satisfy the
commonality requirement.” Rosario v. Livaditis, 963 F.2d 1013,
1017-18 (7th Cir. 1992). A common nucleus of operative fact is
typically found where “defendants have engaged in standardized
conduct towards members of the proposed class.” Keele v. Wexler,
149 F.3d 589, 594 (7th Cir. 1998). See also Gomez, 117 F.R.D. at
399. Factual variations among class members' grievances do not
defeat a class action. Keele, 149 F.3d at 594.

Defendants argue that Plaintiffs fail to meet the commonality
requirement because “the propriety of injunctive or declaratory
relief turns on a condition of the individual circumstances of each

class member.” (Defendants’ Resp., at 6.) Defendants argue that


In the Plaintiffs’ reply they further define the class, and in
effect they propose two possible classes based on the declaration
of their expert, Dr. Roy Ball, and upon the Agreed Protective Order
in the case filed by the Illinois Attorney General and DuPage
County State’s Attorney. In his affidavit, Dr. Ball stated that
“[t]he homes that are located between the Lockformer Site Southern
Property Boundary (North), Maple Avenue (South), Kingston Avenue
(West), and I-355 (East), have an actual or potential risk of
chlorinated solvent exposure emanating from the Lockformer Site.”
(Plaintiffs Reply, Exh. 2, at @ 25.) The Agreed Order in the
Attorney General’s case covers the area

on the north and south sides of Front Street,
Reidy Road, Hitchcock Avenue, And Gamble
Drive. This area will be bound to the west by
Kingston Avenue, and will include any homes on
the east side of Kingston Avenue and bounded
to the east by Westview Lane including any
homes on the east side of Westview Lane.
(Plaintiffs’ Reply, Exh. 5, at 6.)

Plaintiffs have submitted maps obtained from the DuPage County
Assessor’s Office that demonstrate the geographic boundaries of
these two potential classes. (Plaintiffs’ Reply, Exh.6 at
Declaration Exhibits 1, 2.) These maps indicate that Dr. Ball’s
proposed area is significantly larger and contains many more houses
and therefore potential class members than the area covered by the

Agreed Protective order, and that the area in the Agreed Protective

Order is fully within the area proposed by Dr. Ball. Furthermore,


(7th Cir. 1977). The parties should not have to delve into the
merits of the case to determine membership in the class. Toney v.
Rosewood Care Center, Inc., No. 98 C 0693, 1999 WL 199249, *5 (N.D.
Ill. Mar. 31, 1999). If a class is amorphous or indefinite,
however, the court has broad discretion to limit or redefine the
class to bring it within Rule 23. See Gomez, 117 F.R.D. at 397,
n. 2; 7B Charles A. Wright, Arthur R. Miller, Federal Practice and
Procedure, § 1760, at 128-29 (2d ed. 1986).

In the complaint, Plaintiffs seek certification of the
following class:

The Class consists of all persons who satisfy
the following criteria:

(a) They own or reside in property in the area

near the Lockformer and Met-Coil Properties;

and,

(b) Their property has been impacted, or a

threat exists that it will be impacted, by

hazardous substances released at or from the

Lockformer and/or Met-Coil Properties.
Complaint, at 7 34. Lockformer argues that the Plaintiffs have not
defined an ascertainable class and have not provided any objective
criteria for membership in the class. Lockformer asserts that the
“area near the Lockformer and Met-Coil Properties” and property
that “has been impacted, or a threat exists that it will be
impacted” are indefinite and vague and that the Court has not been

provided with sufficient guidance to determine the critical

elements of Plaintiffs’ class.


evidence that TCE is present in the wells in the class area. This
is sufficient evidence that the class definition is reasonable, and
this class definition is subject to modifications as the record is
developed. Cook, 151 F.R.D. at 383; Boggs v. Divested Atomic
Corporation, 141 F.R.D. 58, 61-63 (S.D. Ohio 1991).

Therefore, the Court will proceed with the analysis under
Rule 23(a) and (b) utilizing this class definition. At this point,
it is an appropriate class because it is based on objective
criteria and upon the conduct of the Defendants. See, @.g.,
O'Connor v. Boeing North American, Inc., 184 F.R.D. 311 (C.D. Cal.
1998); National Organization for Women, Inc. v. Scheidler, 172
F.R.D. 351, 359 n. 4 (N.D. I1l. 1997); Cook, 151 F.R.D. at 383;
Boggs, 141 F.R.D. at 61-63; Compare, Diagle v. Shell Oil Company,
133 P.R.D. 600, 602-3) (D. Colo. 1990). As with any class action,
this Order may be altered or amended before a decision on the
merits. FED. R. Civ. P. 23(c) (1). Using this class definition the
named Plaintiffs are members of the class, and the Court will
proceed to the express requirements for a class action.

Numerosity

The first Rule 23(a) requirement is numerosity, it.e., that
“the class is so numerous that joinder of all members is
impracticable.” Plaintiffs must show some evidence of the number
of class members, but precise numbers are not required; a good

faith estimate of the number is sufficient. Rivera v. Grossinger


Minute Order Form (06/97)

. United States District Court, Northern District of Illinois

Name of Assigned Judge i Sitting Judge if Other
or Magistrate Judge Harry D. Leinenweber than Assigned Judge
CASE NUMBER 00 C 7164 DATE 2/23/2001
CASE Teresa LeClereq, et al vs. The Lockformer Company, et al
TITLE
[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented,]
DOCKET ENTRY:
qd) 0 Filed motion of [ use listing in “Motion” box above.]
(2) im Brief in support of motion due
(3) im Answer brief to motion due. . Reply to answer brief due.
(4) oO Ruling/Hearing on set for at .
(5) a Status hearing set for 9 Mar. 01 at 9:00 A.M..
(6) Q Pretrial conference[held/continued to] [set for/re-set for] on set for at
aM oa Trial{set for/re-set for] on at
(8) a [Bench/Jury trial] [Hearing] held/continued to at
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
QFRCP4¢n) O General Rule21 OC FRCP41(a)(1) [1 FRCP4i(a)(2).
ao) [Other docket entry] ENTER MEMORANDUM OPINION AND ORDER: Plaintiffs’ motion for
class certification pursuant to Rule 23(b)(3) is GRANTED.
(1) [For further detail see order attached to the original minute order.]
No notices required, advised in open court.
No notices required. umber of voices
Notices mailed by judge’s staff. Ke
ices mal y judge's stat a ZR (
Notified counsel by telephone. é
wv | Docketing to mail notices. vas
Mail AO 450 form. ve :
a AthecerinGiepyfyiviiats
Copy to judge/magistrate judge.
date maited notice
courtroom
war deputy’s
initials
Date/time received in
central Clerk’s Office mailing deputy initials



1980). Whether the Plaintiffs' claims are typical of those of the
class members they represent is closely related to the commonality
inquiry. Keele, 149 F.3d at 595. A “plaintiff's claim is typical
if 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.” Id., citing De La
Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983)
(citations and internal quotation omitted). The Seventh Circuit
has explained that the typicality requirement directs the “district
court to focus on whether the named representatives’ claims have
the same essential characteristics as the claims of the class at
large.” De La Fuente, 713 F.2d at 232. Defenses unique to the
named representatives or to a small subset of the plaintiff class
may render the claims sufficiently atypical to destroy the required
typicality. Frietsch v. Refco, Inc., No. 92 C. 6844, 1994 WL
10014, at *2 (N.D. Ill. Jan. 13, 1994).

Defendants make a very similar argument here as they did
against commonality, and argue that different facts are required to
prove the claims of different class members. The Court disagrees.
Plaintiffs allege that Defendants course of conduct has caused them
all the same type of injury. Hurd v. Monsanto Company, cited by
Defendants, is plainly distinguishable. 164 F.R.D. 234, 238-39
(S.D. Ind. 1995). In Hurd, the plaintiffs sought certification in

a personal injury case of a class of 3,500 workers who were

-11-


the data that Plaintiffs submitted with their motion reflect widely
varying amounts of TCE and other chemicals in the putative class
members’ wells ranging from amounts in excess of federal drinking
water standards to no detectable contamination. In response,
Plaintiffs point out that Defendants are improperly arguing the
merits of the case, that any claimed variation in the contamination
wells does not change the fact that the contamination flows from
the same source, and that commonality is alleged.

Defendants’ argument does stray too far into evaluating the
merits of Plaintiffs’ case. Plaintiffs have alleged that
Defendants have engaged in a common course of conduct over the
years that has contaminated the water source that the putative
class members use. It is the same conduct that allegedly caused
the injury to all of the Plaintiffs, and there are common questions
of law and fact. “Where the defendant engages in a single course
of conduct that results in injury to the class as a whole, a common
core of operative facts is usually present.” John v. DeLeonardis,
145 F.R.D. 480, 483 (N.D. Ill. 1992). Therefore, the Court finds
that Plaintiffs have established commonality.

Typicality

The third Rule 23(a) requirement, typicality, is met “{w]hen
it is alleged that the same unlawful conduct was directed at or
affected both the named plaintiff and the class sought to be

represented.” Edmondson v. Simon, 86 F.R.D. 375, 381 (N.D. Ill.

-10-


Plaintiffs’ counsel represent about 130 people, “all of whom own
and/or reside in approximately seventy-five (75) properties within
the boundaries set forth in both” the Agreed Order and Dr. Ball’s
proposed area. The Court has carefully reviewed the evidence
submitted by plaintiffs regarding testing of wells, all of which
comes from the smaller defined area as stated in the Agreed Order.
Further, the list of the addresses of the class members and all of
the houses appear to be in the smaller area defined in the Agreed
order.
Therefore, the Court will utilize its discretion to redefine

the class as follows:

The class will consist of those persons who

own or reside in property that has been

impacted, or a threat exists that it will be

impacted, by chlorinated solvents released at

or from the lLockformer and/or Met-Coil

Properties. This property is located directly

south of the Lockformer property and includes

the property on the north and south sides of

Front Street, Reidy Road, Hitchcock Avenue and

Gamble Drive. This area is bounded to the

West by Kingtson Avenue, including any homes

on the east side of Kingston Avenue and

bounded on the east by Westview Lane including

any homes on the east side of Westview Lane.
In response to Lockformer’s arguments that Plaintiffs’ testing
shows inconsistent results withing this area, the Court notes that
a hearing on the merits of Plaintiffs’ case is not appropriate at
this juncture and Rule 23 does not provide for it. Eisen, 417 U.S.
at 177-78, 94S. Ct. at 2152-53; Cook v. Rockwell Int’l Corp., 151

F.R.D. 378, 383 (D. Col. 1993). Here, there is preliminary


Plaintiffs further allege that Lockformer has known for many years
of this threat to Plaintiffs and has intentionally and knowingly
failed to notify Plaintiffs of these threats. Plaintiffs allege
that Lockformers’ negligent acts and omissions include improper
handling, storage, use, disposal, investigation and cleanup of the
hazardous substances and improper maintenance and operation of
equipment using TCE and other hazardous substances.

Plaintiffs proposed class consists of persons who satisfy the
following criteria: “(a) [t]hey own or reside in property in the
area near the Lockformer and Met-Coil Properties; and (b) [t]heir
property has been impacted, or a threat exists that it will be
impacted, by hazardous substances released at or from the
Lockformer and/or Met-Coil Properties.” Plaintiffs seek to enjoin
Lockformer from allowing further contamination of Plaintiffs’
property, to require Lockformer to abate the health risk posed by
the contamination, to require Lockformer to fully investigate and
remediate the contamination of their properties, to reimburse
Plaintiffs for the costs that they have incurred and will incur,
and to recover compensatory and punitive damages for their
injuries.

DISCUSSION

The Federal Rules of Civil Procedure set forth a number of

prerequisites that must be present before a court may approve a

class. First, the Plaintiffs must satisfy the four requirements of


separate actions, the nature and extent of any litigation regarding
the controversy already commenced by class members, the
desirability of concentrating the litigation of the claims in the
particular forum, and the difficulties likely to be encountered in
the management of a class action. Ferp. R. Civ. P. 23(b).
Defendants’ primary arguments against certification under
Rule 23(b) (3) mirror its arguments against a finding of commonality
and typicality. Defendants argue that the variability in
contamination between the putative class members will require
individualized proof and that individualized issues regarding
causation and damages predominate. Defendants heavily rely on
Thomas v. FAG Bearings Corporation, 846 F. Supp. 1400 (W.D. Mo.
1994). In Thomas, the Court denied class certification under
Rule 23(b) (3) in a contamination case stating that “while there are
undoubtedly common issues of law and fact, such as whether
{Defendant] released TCE into the groundwater, the individual
issues of causation and damage so overshadow those in numerosity
and complexity to render a class action unhelpful.” Id. at 1404.
The Court explained that the differing amounts of contamination if
the putative class members’ wells indicated that the proof of
causation and damages will be different for each plaintiff. Id.
However, Plaintiffs’ argument that this case is appropriate
for class treatment under Rule 23(b) (3) also finds support. In

Sterling v. Velsicol Chemical Corporation, the court affirmed the

- 14 -


cause and damages for each plaintiff); Yslava v. Hughes Aircraft
Co., 845 F. Supp. 705, 713 (D. Az. 1993) (common issues predominated
because factual and legal issues relating to the defendant’s
liability did not differ between the plaintiffs, and thus
certification was appropriate); Boggs, 141 F.R.D. at 67 (rejecting
defendant’s argument that individualized nature of plaintiffs’
claims made certification improper and finding that common issues
of liability, including nature of the emissions, history of the
plant, and the kinds of remedies to address actual and future
emissions “overwhelm[ed] individualized issues”).

In this case, the common issues predominate, and if these
claims were tried separately the amount of repetition would be
great. Further, proceeding as a class action is superior to other
methods for adjudication of this case. The proof regarding the
history of operations, the spillage, the impact on the land, soil,
and water, possible remedies, etc. would be identical. See Boggs,
141 F.R.D. at 67 (“[i]t would be neither efficient nor fair to
anyone, including defendants, to force multiple trials to hear the
same evidence”). Repetitive discovery for individual cases on the
same core issues would be wasteful for both the courts and the
parties. While there are individualized issues regarding damages,
if any, suffered by putative class members, the Court finds that
the most appropriate and efficient way to proceed at this juncture

is to certify a class for injunctive relief and liability issues

-~ 16-


BACKGROUND

The following facts are taken from Plaintiffs’ complaint.
Defendant The Lockformer Company existed as an Illinois corporation
from about December 6, 1946 until October 2000 when it was merged
with Met-Coil. Since about June 2000, Defendant Mestek has owned
or operated Lockformer and Met-Coil. Lockformer owns and operates
a manufacturing facility located at 711 Ogden Avenue in Lisle,
Illinois, and Met-Coil owns property directly adjacent to the
Lockformer property. Plaintiffs own and reside in property located
directly south of the Lockformer and Met-Coil properties.
Plaintiffs rely solely on private wells as their source of water
for their homes.

At all relevant times, Lockformer maintained a metal
fabrication business at the Lockformer property, and as part of
that business Lockformer maintained a metal degreasing operation.
Beginning in 1968 and continuing through at least 1997
Lockformer’s degreaser utilized chlorinated solvents, including
trichloroethylene (“TCE”). Plaintiffs allege that the TCE was
stored in a rooftop storage tank and that when the rooftop tank was
filled, solvents, including TCE, were spilled directly onto the
ground. Plaintiffs allege that the hazardous substances released
from the Lockformer property have migrated and continue to migrate
in liquid and vapor form toward Plaintiffs’ homes contaminating the

soil, groundwater, and domestic water supply in the area.


UNITED STATES DISTRICT COURT E I | ha E D
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

(FEB 23 2001
TERESA LeCLERCQ, AL LeCLERCQ, igdge Harry D. Leinenwebax
JAN MATISIAK, WALT MATISIAK, LS. District Court

individually, and on behalf of

all persons similarly

situated,

Case No. 00 C 7164
Plaintiffs,

v.

Judge Harry D. Leinenweber

THE LOCKFORMER COMPANY, a

division of MET-COIL SYSTEMS
CORPORATION, a Delaware ROCKETED
corporation; and MESTECK,
INC., a Pennsylvania FEB 28 2001
corporation,

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiffs, Teresa LeClercq, Al LeClercq, Jan Matisiak, and
Walt Matisiak, brought this action individually and on behalf of a
class of persons similarly situated against Defendants, The
Lockformer Company, Met-Coil Systems Corporation, and Mesteck, Inc.
(collectively, “Lockformer”), seeking entitlement to response costs
pursuant to Section 107(a) of CERCLA, 42 U.S.C. § 9607(a), and
alleging negligence, private nuisance, trespass, strict liability
for an unreasonably dangerous activity, unjust enrichment, and

willful and wanton misconduct. Before the Court is Plaintiffs’

2

motion to certify the class pursuant to Frep. R. Civ. P. 23.

a


allegedly exposed to PCB at a plant where they worked. As
Defendants point out, each plaintiff was exposed to PCB in
different ways and in different amounts, “f{t]hus, no single
proximate cause inquiry applies equally to each putative class
member; no one set of operative facts establishes liability.” Id.
at 239, The case alleged by plaintiffs is distinctly different.
Here, Plaintiffs, who specifically do not allege personal injury
claims, allege that Defendants’ misuse and mishandling of TCE - the
conduct - was the same for all of the putative class members and
caused the same damage - contamination of the groundwater, soil and
wells. Furthermore, even though some of the facts underlying each
person’s claims may vary, they do not create any conflicts between
the class members. See Cook, 151 F.R.D. at 378. As the claims
arise from the same alleged conduct, Plaintiffs have met the
typicality requirement.
Adequacy

To satisfy the adequacy requirement, the class representatives
must demonstrate that: (1) they do not have any antagonistic or
conflicting claims with other members of the class; (2) they have
a sufficient interest in the outcome of the case to ensure vigorous
advocacy; and (3) their counsel is competent, qualified,
experienced, and able to vigorously conduct the litigation. Sebo
v. Rubenstein, M.D., 188 F.R.D. 310, 316 (N.D. Ill. 1999). Here,

Defendants argue that Plaintiffs make only conclusory assertions

-12-


district court’s certification of a class under Rule 23(b) (b) ina
contamination case and addressed the split in authority in these

type of cases:

{t]he problem of individualization of issues
often is cited as a justification for denying
class action treatment in mass tort accidents.
While some courts have adopted this
justification in refusing to certify such
accidents as class actions, numerous other
courts have recognized the increasingly
insistent need for a more efficient method of
disposing of a large number of lawsuits
arising our of a single disaster or course of
conduct . . . Where the defendant’s liability
can be determined on a class-wide basis
because the cause of the disaster is a single
course of conduct which is identical for each
of the plaintiffs, a class action may be the
best suited vehicle to resolve such a
controversy.

855 F.2d 1188, 1196-97. The court further explained that almost
identical evidence would be required to establish the level and
duration of contamination and the defendant’s liability, and that
“[t]he single major issue distinguishing the class members is the
amount of damages, if any, that each sustained” which should be
reserved for individualized treatment. Id. at 1197.

There is ample support for certifying a class action in a
contamination case even though there may be individualized issues
of damages. See, e.g., Bates v. Tenco Svcs., Inc., 132 F.R.D. 160
{(D. S.C. 1990) (class action was superior because common questions
including the cause of the contamination and the defendant’s

liability predominated over the individual questions of proximate

-15-