Boeing Pollution Case Belongs in State Court

(CN) — Washington courts should decide a class action against Boeing involving decades of water pollution and unsatisfactory remediation, the Ninth Circuit ruled Thursday.

Jocelyn Allen is the lead plaintiff in the case, alongside 107 people who live near a plant in Auburn, Washington, that Boeing used from the 1960s to the 1990s to manufacture aircraft parts.

Boeing agreed to perform a cleanup a few years after the state began regulating hazardous materials in 1987. Though it retained the firm Landau Associates for the job, the class contends that both companies failed to remediate the problem over the next 10 years or to warn neighboring property owners about the toxins.

Allen filed her 2013 class action against Boeing and Landau in King County Superior Court, but Boeing requested that the case be removed to federal court under CAFA, short for the Class Action Fairness Act.

Landau is a Washington-based company, potentially satisfying the local-controversy exception to CAFA, but Boeing claimed that Landau had been fraudulently joined as a defendant.

Thursday marks the Ninth Circuit's second ruling on the case, having ordered the lower court last year to weigh in on CAFA's single-event exception.

Chief U.S. District Judge Ricardo Martinez concluded on remand that this exception does apply, thus making state court the proper venue, and the appellate panel in Seattle affirmed Thursday.

Elizabeth Donaldson, an attorney for the class with co-counsel David Bigelow, said the Ninth Circuit got it right," Donaldson said.

"This case involves a local controversy and belongs in state court," Dondaldson said in an interview.

Toxins that leaked from Boeing's facility continue to spread underground, and the full impact that pollution might have on the health of nearby property owners and residents remains unknown, Donaldson added.

A representative for Boeing did not immediately return a phone call seeking comment.

Boeing had argued the class fell short of meeting two requirements of the local-controversy exception that allows class actions to be handled in state court.

It said the plaintiffs failed to show they were seeking "significant relief" from Landau, the local defendant, or that Landau's conduct forms a "significant basis" for their claims.

The Ninth Circuit panel disagreed.

"The fact that Boeing created the pollution does not in itself make insignificant claims that Landau failed to investigate and remediate the spreading pollution for more than a decade," Circuit Judge Consuelo Callahan wrote for a three-judge panel.

While the Auburn residents may not know how much Boeing or Landau is to blame for the sprawling toxins, their allegations against Landau adequately satisfy the requirements of the local-controversy exception, the court found.

"As the district court noted, this action 'involves a potential class action with a truly local focus that particularly affects a local area of the State of Washington to the exclusion of all others,'" Callahan wrote. "Indeed, this appears to be the precise type of case for which the local controversy exception was intended."

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