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Southern District of Texas Denies Class Certification in ITC Fire Case

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HOUSTON, June 22, 2023 – Late on June 21, 2023, a judge in the Southern District of Texas denied class certification in connection with litigation filed against Baker Botts client Intercontinental Terminals Company (ITC), stemming from a March 2019 tank farm fire. The 2019 fire broke out at ITC’s terminal facility located in Deer Park, Texas, and burned for several days.

Following the incident, hundreds of individuals, businesses, and vessel owners filed lawsuits against ITC alleging various types of damages arising out of the fire.  The majority of the lawsuits were consolidated in the Southern District of Texas. In one of those lawsuits, Bryant, plaintiffs sought certification of a putative class of individuals, businesses, schools, and government entities in the surrounding area, claiming damage from particulates released in the fire, including property damage, loss of use and enjoyment, annoyance and inconvenience, and lost wages.  If certified, the proposed class would have included approximately 190,000 individuals and thousands of businesses.

Magistrate Judge Dena Hanovice Palermo held a two-day hearing in December of last year on class certification. In yesterday’s ruling, Judge Palermo agreed with Baker Botts’ arguments that the proposed class failed to satisfy the requirements for class certification set forth by Federal Rule 23(b)(3), which mandates that questions of law or fact common to class members predominate over any questions affecting only individual members. Judge Palermo further noted that the Bryant plaintiffs’ bifurcated trial plan proposing separate liability and damages phases could not be used to “manufacture predominance.”

“We are pleased with the Court’s decision denying class certification. We have consistently stressed that this case does not meet the high criteria of Rule 23.  Class treatment of such individualized claims only would have injected needless confusion into an already complex litigation landscape,” said Baker Botts partner Russell Lewis, who is leading the firm’s representation of ITC.

Last year, Baker Botts obtained summary judgment for ITC on Oil Pollution Act claims brought by another set of plaintiffs and arising out of the closure of the Houston Ship Channel, successfully arguing that the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) precluded OPA liability for commingled spills of oil and CERCLA-regulated hazardous substances.

The Baker Botts team defending ITC in the Bryant class action was comprised of lawyers in Houston and Washington, D.C., including partners Russell Lewis (Houston), Ben Gonsoulin (Houston), and Joshua Frank (Washington, D.C.); senior counsel Michael Goldberg (Houston); senior associates Kelly Hanen (Houston), Lindsay Buchanan (Houston), and Jennifer Golinsky Baseman (Washington, D.C.); and associates Elizabeth Furlow Malpass (Houston) and Samantha Olson (Washington, D.C.).

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