The underlying case concerns the alleged release of toxic chemicals from a manufacturing facility in Canoga Park between 1968 and 1970 by Litton Systems, Inc., an entity now owned by Defendants Northrop Grumman Corporation and Northrop Grumman Systems Corporation (“Northrop Grumman”). Plaintiffs moved for class certification on their claims for negligence, private nuisance, and trespass relating to the contamination.
Defendants submitted an expert report by Dr. Dominique Hanssens purporting to show, among other things, that class members’ homes contained other potential sources of the relevant toxins—sources unrelated to the contamination from Litton’s manufacturing facility—such as common household cleaning products.
To reach this conclusion, Hanssens designed and conducted a survey sent by mail to homes in Plaintiffs’ Proposed Class Area (“PCA”).
Marketing Expert Witness
Dominique Hanssens is a Distinguished Research Professor of Marketing at the UCLA Anderson Graduate School of Management. He has served as the school’s faculty chair, associate dean, and marketing area chair. From 2005 to 2007 he served as executive director of the Marketing Science Institute in Cambridge, Massachusetts.
Hanssens studied econometrics at the University of Antwerp in his native Belgium. He then obtained an M.S. and Ph.D. in marketing from Purdue University. His research focuses on strategic marketing problems, in particular marketing productivity, to which he applies his expertise in data-analytic methods such as econometrics and time-series analysis.
Discussion by the Court
Plaintiffs argued that Defendants tricked and coerced putative class members into responding to the survey—designed to undermine class certification—by including a two-dollar bill that was visible through the envelope window and giving survey respondents a $20 Walmart gift card. Additionally, according to Plaintiffs, Hanssens should have disclosed to participants that Northrop Grumman was sponsoring the survey and that the respondents could be undermining their legal position by responding.
Since the survey itself appeared to be facially neutral and created in accordance with accepted principles, the survey did not require the Court to take the corrective actions Plaintiff seeks.
Plaintiffs pointed to no statement that is likely to leave respondents with a false impression of the litigation or cause respondents to abandon their legal rights. And the Court found no statement in the survey to be clearly misleading or coercive. For example, the Court is not overly troubled with the statements that the recipient was sent the survey as a “resident of the greater Los Angeles area” or that “the results of this survey will not be used to try to sell you anything” and would be “kept in confidence.”
The Court believes that although Plaintiffs can come up with a misleading interpretation of these statements, they simply do not rise to the level of deception that would convince the Court to restrict the parties’ speech rights. Nor are they the type of statements that would enable the Court to craft a narrowly-tailored restriction on speech.
Held
The Court denied Plaintiffs’ motion to strike the expert report of Dominque Hanssens.
Key Takeaway:
Rule 23(d) gives the Court the power “to impose limitations when party engages in behavior that threatens the fairness of the litigation.” For example, courts have found that limitations are necessary in the wake of ex parte communications “soliciting opt-outs” or “discouraging participation in a case.” In contrast to these cases, Hanssens’ survey here was “facially neutral, did not require the participants to waive any of their rights in this litigation, and was conducted pre-certification when Defendants may generally gather information about the putative class.”
Case Details:
| Case Caption: | Jed Behar Et Al V. Northrup Grumman Corporation Et Al |
| Docket Number: | 2:21cv3946 |
| Court: | United States District Court, California Central |
| Order Date: | August 12, 2024 |
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