In a victory for plaintiffs seeking to keep their mass tort actions in state court, the U.S. Court of Appeals for the Third Circuit held the continuous release and dispersal of hazardous or toxic chemicals qualifies as an “event or occurrence” under the Class Action Fairness Act (“CAFA”), allowing a federal District Court to remand a mass action to a state trial court. See Abraham v. St. Croix Renaissance Group, No. 13-1725 (3d Cir. May 17, 2013), available at www.bdlaw.com/assets/attachments/Abraham.pdf.  

Defendant St. Croix Renaissance Group, L.L.L.P. (“SCRG”) owns an alumina factory site in St. Croix where red ore, called bauxite, is refined into alumina. Abraham, slip op. at 5. Plaintiffs, over 500 residents of the area, filed a suit alleging that, for more than ten years, Plaintiffs unwillingly inhaled and consumed dust and loose particles from open piles where SCRG stores residues from the refining process. Id. at 3-6. SCRG promptly removed the civil action to the District Court of the Virgin Islands and Plaintiffs moved to remand to the Superior Court of the Virgin Islands under CAFA. Id. at 3, 7.

Plaintiffs argued that under CAFA, removal was excluded because “all of the claims in the action arise from an event or occurrence in the State in which the action was filed” and the injuries were all experienced in that State. Id. at 7-8. The District Court granted Plaintiffs’ motion to remand, finding that an “event” was not confined to a “discrete happening that occurs over a short time span such as a fire, explosion, hurricane, or chemical spill,” making the analogy that “one can speak of the Civil War as a defining event in American history, even though it took place over a four year period.” Id. at 17-18.

The Third Circuit agreed with the District Court’s broad reading of the words “event” and “occurrence,” finding the lower court’s interpretation of those terms consistent with their ordinary usage. Id. at 21. The appellate court held that the continuous release of a hazardous substance comprised an “event or occurrence,” thereby rendering removal under CAFA improper. Id. at 25-26.