Class actions are often considered a favored way of improving judicial economy and efficiency where there are many plaintiffs with similar claims arising out of a single event. But those benefits can be offset by failing to move to certify the class early enough. The Court of Federal Claims addressed the timing issue in ruling on a recent motion brought by owners of property flooded during Tropical Storm Harvey upstream of the Addicks and Barker Dams near Houston, Texas.

Following Tropical Storm Harvey in 2017, hundreds of lawsuits were filed in the U.S. Court of Federal Claims. The Chief Judge consolidated the cases, entered a case management order, and divided the Master Docket into two sub-master dockets—a downstream docket and an upstream docket. In 2018, the Court identified 13 bellwether plaintiffs in the upstream cases and held a 10-day trial on liability in May 2019. In December 2019 the Court issued its ruling, holding the Government liable for the taking of a flowage easement on the bellwether properties. The parties then commenced discovery on damages, the trial of which is scheduled for early 2022.

On September 24, 2021, counsel for the bellwether plaintiffs moved to certify a class limited to liability. After stating that class certification is presumptively inappropriate after a trial on the merits, the Court analyzed the motion under RCFC 23’s multiple requirements.

The Court concluded Plaintiffs had met their burden of proving the numerosity, commonality, and typicality requirements of Rule 23. The Court, however, found that the adequacy of representation standard had not been met:

Plaintiffs’ timing thus calls into question the adequacy of the proposed representation. Plaintiffs have failed to advance any credible argument for why they delayed. The court concludes, therefore, that plaintiffs have failed to carry their burden to provide that they are qualified and capable of adequately representing the proposed class.

The Court also agreed with the Government’s argument that certifying a class at this stage of the case would actually create case management difficulties and delays. The Court further explained that , after plaintiffs engaged in the bellwether case management approach through years of motion practice, discovery, and trial on liability before filing its motion, “It would be unfair, after securing a favorable ruling at trial on liability, to permit plaintiffs to turn the tables on defendant and belatedly expand the scope of the court’s liability decision from thirteen plaintiffs to thousands.”

Read full decision here.