Contesting the “ascertainability” of the class, the defendant argued that the class definition is not administratively feasible because of the difficulty determining the owners of the damaged property:

“First, Mahan argues that the court cannot easily ascertain the property owners because the circuit court must determine title to all the properties involved. We disagree. The identity of the class members must be ascertainable by reference to objective data without requiring the circuit court to inquire into the facts of each class member’s case….  Here, the defined class requires … proof of property ownership, which can be determined by public records. Reliance on public property records would hardly require the extensive or individualized fact-finding missions Mahan claims.

“Second, Mahan asserts the water-company customers and residents cannot be ascertained easily. Some people with water accounts did not reside at the property. And the definition does not readily identify every person who resided in the dwellings….”  But, the Court concluded: “customer status and residency provide objective criteria for ascertaining membership without requiring an investigation into the merits of individual claims. The terms ‘customer’ and ‘residing in’ are readily understandable, and the court can resolve any discrepancies through billing records and affidavits, if necessary.”

Next, contesting certification on Predominance grounds, the defendant suggests that tort actions are inappropriate for class certification. “That” the Court said, “we have not said. Here, there are overarching issues common to the class that involve proximate causation and will establish liability. The circuit court noted those common issues in its certification order. The answers to those questions control dispositive issues for the entire class and could wipe out the possibility of a claim for every class member. The common inquiries involving proximate causation do not require an examination of facts peculiar to each class member….  Instead, they can be determined on a classwide basis, and they predominate over secondary, individual issues, like the extent of exposure and resulting injury. Additionally, we are mindful of our abuse-of-discretion standard of review. In Hernandez, we did not find that the circuit court abused its discretion in declining to certify the class. Here, the circuit court exercised discretion to certify the class, and we do not find it was an abuse of discretion. Furthermore, while individual inquiries may arise once these overarching common issues are resolved, the circuit court can decertify the class in bifurcated proceedings. Indeed, the circuit court’s order contemplated decertification if the contamination is not system wide and there is no legal requirement to replace the pipes.”


C.J. Mahan Construction v. Betzner, No.20-456, 2021 WL 836886 (Ark. March 4, 2021).