2021-09-24 Upstream Addicks - Doc 397 Motion For Class Certification

Case 1:17-cv-09001-CFL Document 397 Filed 09/24/21 Page 1 of 30
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
In re UPSTREAM ADDICKS AND BARKER

(TEXAS) FLOOD-CONTROL RESERVOIRS
Sub-Master Docket No. 17-9001L
THIS DOCUMENT APPLIES TO: Judge Charles F. Lettow
ALL UPSTREAM CASES
PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
Daniel H. Charest Charles Irvine

E. Lawrence Vincent IRVINE & CONNER PLLC
BURNS CHAREST LLP 4709 Austin Street
900 Jackson Street, Suite 500 Houston, Texas 77004
Dallas, Texas 75202 713-533-1704
469-904-4550 charles@irvineconner.com
dcharest@burnscharest.com Co-Lead Counsel, Upstream Pre-Trial
lvincent@burnscharest.com Discovery and Dispositive Motions
Co-Lead Counsel, Upstream Pre-Trial
Discovery and Dispositive Motions Edwin Armistead “Armi” Easterby
WILLIAMS HART BOUNDAS EASTERBY, LLP
Co-Lead Counsel for Upstream Plaintiffs 8441 Gulf Freeway, Suite 600
as to Jurisdictional Discovery, Motion to Houston, Texas 77017
Dismiss, and Scheduling 713-230-2200
aeasterby@whlaw.com
Discovery and Dispositive Motions
TABLE OF CONTENTS
I. INTRODUCTION ............................................................................................................................. 1
II. FACTS APPLICABLE TO THE CLASS REPRESENTATIVES AND ALL
CLASS MEMBERS ............................................................................................................................. 2
III. ARGUMENT AND AUTHORITY ................................................................................................ 6
A. The Class definition identifies Class members with objective criteria. .......................... 7
B. The Class meets the RCFC 23 numerosity requirement. ................................................. 9
C. The Class meets the RCFC 23 commonality requirement. .............................................. 9
1. There are questions of law or fact common to the Class. ................................ 10
2. The United States has acted or refused to act on grounds generally
applicable to the Class. ........................................................................................... 11
3. The common questions predominate over any questions affecting only
individual members. ................................................................................................ 12
D. The Class meets the RCFC 23 typicality requirement. ................................................... 13
E. The Class Representatives, and proposed Class Counsel, meet the RCFC 23
adequacy requirements. ........................................................................................................ 14
1. The Class Representatives meet the adequacy requirements. .......................... 14
2. Proposed Class Counsel meet the adequacy requirements............................... 15
F. The Class meets the RCFC 23 superiority requirement. ................................................ 19
1. The Class is superior because the Mendoza/Stauffer doctrine bars non-
mutual offensive collateral estoppel against the United States. ....................... 19
2. The Class is superior because it provides a court-approved mechanism
to inform individuals that the government took a permanent flowage
easement over their property. ............................................................................... 21
3. Class Members have little or no interest in individually controlling the
prosecution of many, many separate actions to resolve the issues for
which certification is sought. ................................................................................. 21
4. The extent and nature of the litigation concerning the issues for which
certification is sought supports class certification. ............................................ 23
5. The likely difficulties in maintaining a class action are minimal. ..................... 23
CONCLUSION ............................................................................................................................................... 24
ii
TABLE OF AUTHORITIES
Cases
Amchem Products, Inc. v. Windsor,

521 U.S. 591 (1997) ............................................................................................................................... 14, 21
Amgen Inc. v. Connecticut Retirement Plans & Trust Funds,
133 S. Ct. 1184 (2013) ................................................................................................................................... 1
Arizona v. California,
460 U.S. 605 (1983) ....................................................................................................................................... 1
Bacon v. Honda of Am. Mfg., Inc.,
370 F.3d 565 (6th Cir. 2004) ........................................................................................................................ 9
Barnes v. United States,
68 Fed. Cl. 492 (2005) ......................................................................................................................... passim
Barry v. United States,
117 Fed. Cl. 518 (2014)................................................................................................................................. 7
Bell v. United States,
123 Fed. Cl. 390 (2015).................................................................................................................. 13, 22, 23
Byrd v. Aaron’s Inc.,
784 F.3d 154 (3d Cir. 2015) ......................................................................................................................... 7
Caldwell v. United States,
391 F.3d at 1226 (Fed. Cir. 2004) ............................................................................................................. 12
Cf. Smith Int’l, Inc. v. Hughes Tool Co.,
759 F.2d 1572 (Fed. Cir. 1985) .................................................................................................................... 1
Constantine v. United States,
14 Cl. Ct. 339 (1988) ................................................................................................................................... 20
Curry v. United States,
81 Fed. Cl. 328 (2008) ................................................................................................................................. 12
DeMons v. United States,
119 Fed. Cl. 345 (2014)................................................................................................................................. 6
Douglas R. Bigelow Trust v. United States,
97 Fed. Cl. 674 (2011) ................................................................................................................ 2, 12, 13, 14
Favreau v. United States,
48 Fed. Cl. 774 (2000) ................................................................................................................................... 7
Geneva Rock Products, Inc. v. United States,
100 Fed. Cl. 778 (2011)............................................................................................................ 10, 12, 13, 14
Gross v. United States,
106 Fed. Cl. 369 (2012)................................................................................................................................. 7
Haggart v. United States,
89 Fed. Cl. 523 (2009) ......................................................................................................................... passim
iii
In re Upstream Addicks & Barker (Tex.) Flood-Control Reservoirs,

146 Fed. Cl. 219 (2019).................................................................................................................. 1, 5, 9, 11
In re Upstream Addicks & Barker (Tex.) Flood-Control Reservoirs,
148 Fed. Cl. 274 (2020)........................................................................................................................... 1, 12
King v. United States,
84 Fed. Cl. 120 (2008) ......................................................................................................................... passim
Land Grantors in Henderson, Union and Webster Counties, Ky. v. United States,
71 Fed. Cl. 614 (2006) ............................................................................................................................. 9, 13
Moore v. United States,
41 Fed. Cl. 394, 396 (1998) ............................................................................................................. 9, 13, 23
Silver Buckle Mines, Inc. v. United States,
132 Fed. Cl. 77 (2017) ......................................................................................................................... passim
Starr Int’l Co., Inc. v. United States,
109 Fed. Cl. 628 (2013)............................................................................................................................... 15
Taylor v. United States,
41 Fed. Cl. 440 (1998) ................................................................................................................................. 13
Transonic Sys., Inc. v. Non–Invasive Med. Techs. Corp.,
75 F. App’x 765 (Fed. Cir. 2003)................................................................................................................. 1
Tyson Foods, Inc. v. Bouaphakeo,
136 S.Ct. 1036 (2016) .................................................................................................................................. 11
United States v. Exxon Corp.,
773 F.2d 1240 (Temp. Emer. Ct. App. 1985) ......................................................................................... 23
United States v. Mendoza,
464 U.S. 154 (1984) ..................................................................................................................................... 20
United States v. Stauffer Chemical Co.,
464 U.S. 165 (1984) ..................................................................................................................................... 20
Wal-Mart Stores, Inc. v. Dukes,
564 U.S. 338 (2011) .......................................................................................................................... 1, 10, 14
Other Authorities
C. Wright, A. Miller & M. Kane, FED. PRAC. & PROC. CIV. § 1754 (3d ed. 2005) .................................. 6
C. Wright, A. Miller & M. Kane, FED. PRAC. & PROC. CIV. § 1790 (3d ed. April 2021 update) ......... 13
William B. Rubenstein, NEWBERG ON CLASS ACTIONS § 4:50 (5th ed. 2012) ....................................... 11
Rules
FED. R. CIV. P. 23 ......................................................................................................................................... 6, 14

RCFC 23 .......................................................................................................................................................... 6, 9
RCFC 23(a)(2) ................................................................................................................................................... 10
RCFC 23(b)(2) .................................................................................................................................................. 10
iv
RCFC 23(b)(3) ..................................................................................................................................... 10, 19, 23

RCFC 23(c)(2)................................................................................................................................................... 21
RCFC 23(c)(4)..................................................................................................................................................... 1
RCFC 23(g) ................................................................................................................................................. 15, 16
RCFC 23(g)(1)(A) ............................................................................................................................................. 15
RCFC 83.1(c)(1) ......................................................................................................................................... 15, 16
v
I. INTRODUCTION
Christina Micu, Scott Holland, the Lakes on Eldridge Homeowners Association, Catherine
Popovici, Kulwant Sidhu, Elisio Soares, Elizabeth Burnham, and Mitchell Stewart (each individually
and on behalf of all persons similarly situated) (collectively the “Class Representatives” or “Movants”)
request this Court certify a Class consisting of all owners of a real and/or personal property interest
which, on August 30, 2017, was located within the reservoir pool created by the Addicks dam at or
below an elevation of 109.1 feet msl (NAVD 88, 2001 adj.), or located within the reservoir pool created
by the Barker dam at or below an elevation of 101.6 feet msl (NAVD 88, 2001 adj.) (collectively, the
“Class” and, individually, the “Class Members”).
Certification is sought only as to the question of liability, which is common to all Class
Members and can be proven through evidence common to the Class and fact findings made in this
case. See RCFC 23(c)(4); Amgen Inc. v. Connecticut Retirement Plans & Trust Funds, 133 S. Ct. 1184, 1195-
96 (2013); In re Upstream Addicks & Barker (Tex.) Flood-Control Reservoirs, 148 Fed. Cl. 274 (2020)
(decision on the date and scope of taking); In re Upstream Addicks & Barker (Tex.) Flood-Control Reservoirs,
146 Fed. Cl. 219 (2019) (decision on liability as to Movants).1 A determination that the government is
liable to the Class Members for the construction, modification, and operation of Addicks and Barker
dams, which resulted in the taking of a permanent flowage easement common to all Class Members,
will advance the litigation by resolving the liability issue for all Class Members “in one stroke.” See
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). The Court should certify the Class.
1
Movants request the Court apply the law of the case doctrine and refrain from relitigating those
issues it has already decided during this litigation. See Transonic Sys., Inc. v. Non–Invasive Med. Techs. Corp.,
75 F. App’x 765, 774 (Fed. Cir. 2003) (citing Arizona v. California, 460 U.S. 605, 618 (1983)). None of
the “exceptional circumstances” apply here: no substantially different evidence has been produced; no
change in controlling authority or contrary decision of applicable law has been handed down; and no
prior determinations made by this Court were clearly erroneous and would work a manifest injustice.
Cf. Smith Int’l, Inc. v. Hughes Tool Co., 759 F.2d 1572, 1576 (Fed. Cir. 1985).
1
The Class for which certification is sought here meets the five requirements of Rule 23 of the
Rules of the United States Court of Federal Claims (hereafter “RCFC”): “(i) numerosity—a class is
so large that joinder is impracticable; (ii) commonality—in terms of the presence of common
questions of law or fact, the predominance of those questions, and the treatment received by the Class
Members at the hands of the United States; (iii) typicality—that the named parties’ claims are typical
of the class; (iv) adequacy—relating to fair representation; and (v) superiority—that a class action is
the fairest and most efficient way to resolve a given set of controversies.” Douglas R. Bigelow Trust v.
United States, 97 Fed. Cl. 674, 675 (2011). On the record before it, the Court should grant the motion.
II. FACTS APPLICABLE TO THE CLASS REPRESENTATIVES AND ALL CLASS

MEMBERS
In 1938, the United States Congress authorized the Buffalo Bayou and Tributaries, Texas
Project (the “Project”) to reduce the risk of flooding for the City of Houston and the Houston Ship
Channel.2 The Project achieved its public purpose by temporarily impounding, detaining, and then
releasing stormwater runoff from the approximately 400-square mile upper Buffalo Bayou watershed.3
As part of the Project, the U.S. Army Corps of Engineers (the “USACE” or “Corps”) constructed,
modified, maintained, and currently operates the Addicks and Barker dams, each of which holds back
2
ECF 211, Stipulations of Fact for Trial No. 86; JX 91, Addicks and Barker Reservoirs, Buffalo Bayou
and Tributaries, Fort Bend and Harris Counties, Texas, 2009 Master Plan at 1 (August 2009, USACE
016051). Citations to documents filed with the Court (“ECF #”) are to filings in the Sub-Master
Docket No. 17-9001L, In re Upstream Addicks and Barker (Texas) Flood-Control Reservoirs. Citations to
exhibit numbers and transcript pages (“RR”) are to the trial transcript and exhibits entered at the trial
on the merits for the thirteen Test Property Plaintiffs conducted by this Court from May 6 through
May 17, 2019.
3
ECF 211, Stipulations of Fact for Trial No. 86; JX 91, Addicks and Barker Reservoirs, Buffalo Bayou
and Tributaries, Fort Bend and Harris Counties, Texas, 2009 Master Plan at 1 (August 2009, USACE
016051).
2
and retains stormwater runoff in its respective reservoir.4 According to the Corps, the Addicks
reservoir can store 329,676 acre-feet of water and the Barker reservoir can store 281,267 acre-feet of
water at their respective Spillway Design Flood elevations of 115 feet and 108 feet.5 But, before
Harvey, the government only owned sufficient property rights to store 127,591 acre-feet of water
behind Addicks (at elevation 103 feet) and 82,921 acre-feet of water behind Barker (at elevation 95
feet).6
On August 25, 2017, Hurricane Harvey (“Harvey”) made landfall near Rockport, Texas as a
Category 4 hurricane.7 Even though Harvey weakened into a tropical storm within 12 hours of landfall,
by 2:26 pm on August 25, 2017, the Corps recognized that that the storm would deposit enough
rainfall in the Buffalo Bayou watershed to raise the reservoir pool levels behind the Addicks and Barker
Dams “beyond the government owned land limits.”8
During Harvey, the Corps operated the Project consistent with its 2012 Water Control Manual,
and, therefore, with knowledge of the anticipated impacts on private and non-federal property
upstream of the Addicks and Barker dams, causing the flooding of thousands of parcels of private
property with the retained stormwater runoff.9 The Corps gave no consideration to the protection (or
4
JX 94, Addicks and Barker Upstream Meeting Summary Report (February 2010, USACE 594485)
(stating “these structures were built to hold back and control water runoff from the upper Buffalo
Bayou watershed.”).
5
USACE 2014 Emergency Action Plan at E-2 and E-4 (USACE 019883-85).
6
USACE 2014 Emergency Action Plan at E-2 and E-4 (USACE 019883-85).
7
ECF 211, Stipulations of Fact for Trial No. 107.
8
JX 146, CWMS Forecast for August 25, 2017, at 1 (COH-DOJ 0008154).
9
ECF 211, Stipulations of Fact for Trial No. 109; 6 RR 1448:18-21; 6 RR 1452:18-1453:10; PX 1747,
Email from Richard Long to Jon Sweeten at 1 (September 5, 2017, USACEII 00655687) (“[W]e far
exceeded the government-owned land . . . This operation resulted in the flooding of thousands of
homes upstream.”); JX 228, FY 2017 Annual Water Control Report at VII-7 (June 2018, USACE
869494) (“The [Addicks] reservoir exceeded both 100% of government owned storage capacity and
100% of total reservoir capacity, resulting in impacts to local neighborhoods upstream of the
reservoirs.”); Id. (“During Hurricane Harvey, the [Barker] reservoir surpassed 100% of government
3
devastation) of any upstream private property located behind either the Addicks or Barker dams
because “[t]he sole authorized purpose for the Addicks and Barker Reservoirs is to reduce potential
flood damage along the downstream reach of Buffalo Bayou.”10 The government’s only objective for
its Project was, and has always been, to protect downtown Houston and the Houston Ship Channel
from flooding—without regard to the impact on any private and non-federal property—upstream of
and within the pools of the Addicks and Barker dams.11 In keeping with that objective, the Corps
operates the reservoirs “in a manner that will utilize, to the maximum extent possible, the available
storage to prevent the occurrence of damaging stages on Buffalo Bayou.”12 This plan for storage
includes all the land in the reservoirs behind the embankments, including land the government does
not own.13 And, on August 30, 2017, both dams functioned as the government intended, with the
reservoir pool behind Barker dam cresting at an elevation of 101.6 feet msl (NAVD 88, 2001 adj.),
owned storage capacity and occupied 81.6% of its total reservoir capacity, causing impacts to local
neighborhoods.”).
10
PX 59, Draft Operational Assessment of the Addicks and Barker Reservoirs, Fort Bend and Harris
Counties, TX at 8 (October 2009, USACE 464077) (emphasis added); see also JX 5, Buffalo Bayou,
Texas Definite Project Report at 3 (June 1, 1940, USACE 129504) (“It is a plan … to provide for
complete control of floods on the Buffalo Bayou watershed and the protection of the city of Houston,
Texas, and the Houston Ship Channel against the estimated probable maximum flood.”); JX 110,
Addicks and Barker Reservoirs, Buffalo Bayou and Tributaries, San Jacinto River Basin, TX, Water
Control Manual at 3-1 (November 2012, USACE 016311) (“The existing project, as authorized,
provides for flood risk management, the protection of the City of Houston from flood damages, and
the prevention of excessive velocities and silt deposits in the Houston Ship Channel Turning Basin.”).
11
PX 59, Draft Operational Assessment of the Addicks and Barker Reservoirs, Fort Bend and Harris
Counties, TX at 21 (October 2009, USACE 464090) (“The dams are operated strictly to prevent
downstream flooding; therefore, the gates remain shut even if pool levels increase and flood upstream
properties.”).
12
JX 110, Addicks and Barker Reservoirs, Buffalo Bayou and Tributaries, San Jacinto River Basin, TX,
Water Control Manual at 7-4 (November 2012, USACE 016338).
13
In re Upstream, 146 Fed. Cl. at 239; see Tr. 67:12-68:3 (Thomas).
4
and the reservoir pool behind Addicks dam cresting at an elevation of 109.1 feet msl (NAVD 88, 2001
adj.).14
Each of the Class Representatives’ properties is located beyond the limits of government-
owned land but within the reservoir pools created by the Addicks and Barker dams; the maximum
inundation each suffered during Harvey was caused solely by the actions of the USACE in its design,
construction, maintenance, and operation of the Project.15 Like each of the Class Representatives, the
parcels of real property owned or leased by each Class Member suffered maximum inundation on
August 30, 2017, from the Class 3 contaminated “black water” retained behind the Addicks and Barker
dams.16 The government’s flooding caused each Class Member property destruction, devaluation, and
devastating economic loss.
Each of the thousands of Class Members hold the same inverse condemnation (takings) claim
against the United States, and each of those claims is based on the same set of facts regarding the
government’s liability: claims which the Class Representatives have already successfully adjudicated;
claims typical of all those held by Class Members; and claims that encompass the spectrum of Class
Members who own property interests in both commercial and residential properties and personal
property. See In re Upstream Addicks & Barker (Tex.) Flood-Control Reservoirs, 146 Fed. Cl. 219, 227-28
(2019) (noting that the thirteen bellwether properties were representative of property owners who
14
ECF 211, Stipulations of Fact for Trial Nos. 110, 111, 112, 114; PX 526, Expert Report of Philip
Bedient at 2, 3 (November 5, 2018, Figures 2A, 2B).
15
PX 526, Expert Report of Philip Bedient at 2-3, Figures 2A & 2B (November 5, 2018); In re Upstream,
146 Fed. Cl. at 245 (discussing expert testimony at trial that flooding of Movants’ properties was
caused by government actions).
16
In re Upstream, 146 Fed. Cl. at 252 (discussing trial testimony regarding Category 3 “black water,”
which refers to water with “a greater potential to harbor pathogens, including sewage, chemicals,
fertilizer, [and] organic material.”); Tr. 2892:14-24 (Hooper).
5
claimed that the United States was liable to them for an uncompensated taking by virtue of the
government-controlled inundation of their properties by the impounded floodwater from Harvey).
Moreover, the Class Representatives (and their undersigned counsel) have shown the ability
and willingness to represent the Class fairly and adequately by persevering through four years of
discovery, motion practice, and trial on the merits. Given this record, and the law to be applied by this
Court, a class action is the superior mechanism to resolve the thousands of identical liability claims
held by the Class Members. No valid argument to the contrary exists.
III. ARGUMENT AND AUTHORITY
As a procedural mechanism, the class action “continues to have as its objectives the efficient
resolution of the claims or liabilities of many individuals in a single action, the elimination of
repetitious litigation and possibly inconsistent adjudications involving common questions, related
events, or requests for similar relief, and the establishment of an effective procedure for those whose
economic position is such that it is unrealistic to expect them to seek to vindicate their rights in
separate lawsuits.” 7A C. Wright, A. Miller & M. Kane, FED. PRAC. & PROC. CIV. § 1754 (3d ed. 2005)
(discussing FED. R. CIV. P. 23).17 Certification of the Class requested here satisfies every requirement
of RCFC 23 and furthers each policy RCFC 23 aims to promote.
17
RCFC 23 is modeled after Federal Rule of Civil Procedure 23. DeMons v. United States, 119 Fed. Cl.
345, 350 (2014). This Court has used decisions involving FRCP 23 to construe RCFC 23. See Haggart
v. United States, 89 Fed. Cl. 523, 529 (2009) (“[C]ases applying [FRCP 23] have been examined and
followed in interpreting RCFC 23.”); Barnes v. United States, 68 Fed. Cl. 492, 494 n. 1 (2005) (“Owing
to the fact that the language of RCFC 23 and Federal Rule 23 is, in many regards, identical, this opinion
relies upon numerous decisions that have construed the relevant portions of the latter rule.”).
6
A. The Class definition identifies Class members with objective criteria.
As an initial matter,18 the Class Representatives seek certification of a Class as to liability only
consisting of persons with similar claims:
All owners of a real and/or personal property interest which, on August 30, 2017, was
located within the reservoir pool created by the Addicks dam at or below an elevation
of 109.1 feet msl (NAVD 88, 2001 adj.), or located within the reservoir pool created
by the Barker dam at or below an elevation of 101.6 feet msl (NAVD 88, 2001 adj.).
The Class definition captures the Court’s finding that the flooding on Class Members’
properties at the time of the maximum reservoir pool on August 30, 2017, was caused by, and the
direct result of, the government’s construction, modification, and operation of the Project, as
underscored by the sheer fact that that the Class Members’ properties are, by government design,
within the Project’s flood-pool reservoirs. The limited, objective criteria set forth in the Class
definition means any claimant seeking to opt-in to the Class need only establish ownership of a real
or personal property interest which, on August 30, 2017, was located within the relevant Harvey
reservoir pool. See Barnes, 68 Fed. Cl. at 495, n.4 (noting cases direct that there be “a legally definable
class that can be ascertained through reasonable effort”); see also Byrd v. Aaron’s Inc., 784 F.3d 154, 163
(3d Cir. 2015) (“The ascertainability inquiry is two-fold, requiring a plaintiff to show that: (1) the class
is defined with reference to objective criteria, and (2) there is a reliable and administratively feasible
mechanism for determining whether putative class members fall within the class definition. . . . And
it does not mean that a plaintiff must be able to identify all class members at class certification—
18
See Gross v. United States, 106 Fed. Cl. 369, 373 (2012) (analyzing proposed class definition prior to
examination of RCFC 23 requirements). Movants submit this definition and note that this Court can
modify substantive or non-substantive aspects of the proposed definition in its discretion. Silver Buckle
Mines, Inc. v. United States, 132 Fed. Cl. 77, 97 (2017) (citing King v. United States, 84 Fed. Cl. 120, 128-
29 (2008)); see also Barry v. United States, 117 Fed. Cl. 518, 522 (2014) (modifying proposed class
definition to account for claims barred by limitations); Gross v. United States, 106 Fed. Cl. 369, 374
(2012) (flawed proposed class definition would not prevent certification; instead court chose to modify
it and determine certification question based on the modified definition); Favreau v. United States, 48
Fed. Cl. 774, 776 (2000) (certifying class based on court-modified class definition).
7
instead, a plaintiff need only show that class members can be identified.”). The Class definition ably
meets these standards. The areal extent of the Class is shown graphically in PDX 6–7, which come
from Dr. Bedient’s report, in the record as PX 526 from the liability trial:
8
B. The Class meets the RCFC 23 numerosity requirement.
In assessing whether the numerosity factor is satisfied courts consider various attributes of the
class, including the number and location of Class Members and the size of individual claims, “[t]he
number of class members is the most important factor.” Silver Buckle Mines, 132 Fed. Cl. at 98; see also
King, 84 Fed. Cl. at 124 (“While not outcome determinative, the number of potential class members is
persuasive when determining numerosity; generally, if there are more than forty potential class
members, this prong has been met.”); Land Grantors in Henderson, Union and Webster Counties, Ky. v.
United States, 71 Fed. Cl. 614, 622 (2006) (“[T[he proposed class includes over 1,000 known plaintiffs,
and, before the case is final, that number may increase. This fact alone supports the numerosity
requirement.”); Moore v. United States, 41 Fed. Cl. 394, 396, 401 (1998) (certifying opt-in class of over
2,000 property owners); Barnes, 68 Fed. Cl. at 495 (“[T]he class in question . . . potentially numbers in
the thousands, . . . so numerous that joinder of all members is impracticable.”); Bacon v. Honda of Am.
Mfg., Inc., 370 F.3d 565, 570 (6th Cir. 2004) (“[The] sheer number of potential litigants in a class,
especially if it is more than several hundred, can be the only factor needed to satisfy Rule 23(a)(1).”)
(cited and quoted in Land Grantors).
The Class, as defined, contains more than an estimated ten thousand Class Members,
rendering joinder in a single action is impracticable and satisfying the numerosity requirement.19
C. The Class meets the RCFC 23 commonality requirement.
“The commonality criterion is generally evaluated based upon a three-part test cobbled
together from various parts of RCFC 23. This factor encompasses (1) whether there are questions of
19
See In re Upstream Addicks & Barker (Tex.) Flood-Control Reservoirs, 146 Fed. Cl. 219, 227-28 (2019)
(noting that the Class representatives “are representative of the hundreds of owners of upstream
properties” who have sued the United State asserting the same claim: that the government is liable to
them for an uncompensated taking caused by the government-controlled inundation of their
properties by impounded floodwater); see also PX 526 (Dr. Bedient’s Report) at 44 (citing the USACE
records showing over fifteen thousand flooded properties upstream).
9
law or fact common to the class, RCFC 23(a)(2); (2) whether the United States has acted or refused
to act on grounds generally applicable to the class, RCFC 23(b)(2); and (3) whether those common
questions predominate over any questions affecting only individual members, RCFC 23(b)(3).” Geneva
Rock Products, Inc. v. United States, 100 Fed. Cl. 778, 788 (2011). “The threshold for proving commonality
‘is not high.’” Haggart v. United States, 89 Fed. Cl. 523, 532 (2009) (quoting King, 84 Fed. Cl. at 125). All
three aspects of this Court’s commonality requirement inquiry are met on this record.
1. There are questions of law or fact common to the Class.
To establish the existence of a common factual or legal issue, movants must demonstrate that
the claims of the Class Members “depend upon a common contention” that “is capable of class wide
resolution.” Wal-Mart, 564 U.S. at 350; see also Barnes, 68 Fed. Cl. at 496 (“[T]he questions underlying
the claims of the class merely must share essential characteristics, so that their resolution will advance
the overall case.”). A common contention can be resolved for the entire class if the “determination of
its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one
stroke.” Wal-Mart, 564 U.S. at 350; see also Douglas R. Bigelow Trust, 97 Fed. Cl. at 678 (commonality
requirement is satisfied where the liability question “would be based on the same core facts and legal
issues”); Geneva Rock Products, 100 Fed. Cl. at 789 (commonality found where the “issue is whether the
NITU . . . effected a taking of the class members’ property”); King, 84 Fed. Cl. at 126 (“The court
agrees with the conclusion that commonality is satisfied where the lawsuit challenges a system-wide
practice or policy that affects all of the putative class members.”). Only one significant common
contention capable of class wide resolution is necessary to satisfy the common-issue requirement. See
Barnes, 68 Fed. Cl. at 496 n.6.
Each Class Member makes the same legal contention: that the government’s actions
constituted a taking. Moreover, each Class Member’s singular legal claim is based on the same set of
facts and circumstances: the government’s intentional use of their private property to store detained
10
floodwaters within the Project’s designed flood-pool reservoirs. The Court ruled these facts resulted
in a taking as to each Class Representative. The facts and findings, as supported by the record already
developed in this case, demonstrate the existence of common factual or legal issues sufficient for
certification. Tyson Foods, Inc. v. Bouaphakeo, 136 S.Ct. 1036, 1045 (2016) (“A common question is one
where ‘the same evidence will suffice for each member to make a prima facie showing or the issue is
susceptible to generalized, class-wide proof.’”) (cleaned up) (quoting 2 William B. Rubenstein,
NEWBERG ON CLASS ACTIONS § 4:50, at 196–97 (5th ed. 2012)).
2. The United States has acted or refused to act on grounds generally applicable
to the Class.
The commonality inquiry is satisfied where each member of the proposed class received
identical treatment from the government. Silver Buckle Mines, 132 Fed. Cl. at 100; see also Barnes, 68 Fed.
Cl. at 496 (issue satisfied where lawsuit “challenges a system-wide practice or policy that affects all of
the putative class members”). That fits this case and this Class.
Like each Class Representative, each Class Member contends that the same conduct by the
government caused them the same injury: invasion of the Addicks and Barker flood pools on to Class
Member’s properties as a direct result of the government’s design, construction, maintenance, and
operation of the Addicks and Barker Dams before, during, and after Harvey throughout the areal
extent of the Class.20 As the Court did for Movants, the fundamental liability question can be
determined by examining the same core facts. See In re Upstream, 146 Fed. Cl. at 230–33 (discussing
20
JX 1; ECF 211, Stipulations of Fact for Trial No. 79 (“The U.S. Congress authorized the Addicks
and Barker Dams as part of the Buffalo Bayou and Tributaries, Texas Project by the Rivers and
Harbors Act of June 20, 1938.”), No. 87 (“The Buffalo Bayou and Tributaries Project includes the
Addicks Dam and Reservoir and the Barker Dam and Reservoir.”), No. 109 (“During Harvey, the
USACE operated the Addicks and Barker Dams by opening and closing their floodgates consistent
with its 2012 Water Control Manual.”); see also In re Upstream, 146 Fed. Cl. at 254–56 (discussing the
nature and magnitude of the government action and how it appropriated a benefit to the government
at the direct expense of inflicting significant injury to the upstream property owners); PX 526 (Dr.
Bedient’s Report), at 44–45 (describing the areal extent of the government taking).
11
design); Id. at 238–41 (discussing operations); In re Upstream, 148 Fed. Cl. at 277–78 (same event
causing the alleged taking). This area-wide action from the Project is akin to the classes certified in
Rails-to-Trails cases which themselves are based on a single government action: the issuance of a
Notice of Interim Trail Use or Abandonment (“NITU”). See, e.g., Geneva Rock Products, 100 Fed. Cl. at
788-89 (“There can be little question that the government acted on grounds applicable to the entire
class in this case. The NITU was a single act that affected all putative class members.”); Douglas R.
Bigelow Trust, 97 Fed. Cl. at 678 (“Defendant does not dispute that all plaintiffs’ claims arise from the
defendant’s issuance of a single NITU.”); Haggart, 89 Fed. Cl. at 533 (“Here, facts arising from the
issuance of the NITUs are common to the class.” (citing Caldwell v. United States, 391 F.3d at 1226,
1233 (Fed. Cir. 2004) (“The issuance of the NITU is the only government action in the railbanking
process.”))). The government’s actions proven to support liability for Movants are similarly applicable
to the Class Members’ claims.
3. The common questions predominate over any questions affecting only

individual members.
The predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant
adjudication by representation. Silver Buckle Mines, 132 Fed. Cl. at 99 (“Common issues predominate
over individual issues if the common issues that can be resolved by generalized proof are more
substantial than the issues subject only to individualized proof.”). “Factual variation among the class
grievances is acceptable so long as a common nucleus of operative fact exists.” King, 84 Fed. Cl. at 126
(quoting Curry v. United States, 81 Fed. Cl. 328, 334 (2008)).
As discussed above, the central, predominant questions to be decided on a class-wide basis
relate to whether the government’s design, construction, maintenance, and operation of the Addicks
and Barker Dams as part of the Project caused flooding within the reservoirs that effectuated a taking
of Class Members’ private property. Certification of a liability class—reserving all issues concerning
damages for subsequent, individual determinations—secures the advantages and economies of
12
adjudicating issues that are common to the entire class on a representative basis even though other
issues in the case (such as individualized damages) may need to be litigated separately by each class
member. 7AA C. Wright, A. Miller & M. Kane, FED. PRAC. & PROC. CIV. § 1790 (3d ed. April 2021
update). The only individual fact necessary for determination, i.e., ownership of a protectable property
interest which qualifies under the class definition, can readily be established at the time a Class Member
opts-into the Class.21
D. The Class meets the RCFC 23 typicality requirement.
The typicality requirement “is intertwined with commonality” and is demonstrated “when
each class member’s claim arises from the same course of events, and each class member makes similar
legal arguments to prove the defendant’s liability.” Silver Buckle Mines, 132 Fed. Cl. at 100; see also Moore,
41 Fed. Cl. at 399 (typicality requirement satisfied where each named plaintiff and potential class
member owned or rented land encumbered by the government’s structure and sued under the Fifth
Amendment for a taking). As with commonality, “[t]he threshold for plaintiffs to overcome is not
high, and even if some factual differences exist, typicality can be established by showing that the named
21
Individualized questions concerning Class Members’ damages, including the size of the property
taken and the quantum of compensation owed individual members of the Class, are not at issue as
certification is only sought on the question of liability and would not suffice to prohibit certification
in any event. See Bell v. United States, 123 Fed. Cl. 390, 401 (2015) (“The size of individual properties
varies in every takings case, and has never defeated class certification.”); Geneva Rock Products, 100 Fed.
Cl. at 789 (“If the NITU did effect a taking, then the putative class members will be owed just
compensation regardless of the specific property interest they held in the land.”); id. (stating that any
variations in the amount of compensation due to class members “are incidental to the basic question
of whether the NITU entitles them to compensation at all”); Douglas R. Bigelow Trust, 97 Fed. Cl. at
678 (“[A]lthough plaintiffs may be entitled to different amounts of just compensation, if awarded, the
decision would be based on the same core facts and legal issues.”); Haggart, 89 Fed. Cl. at 533–34
(“Because each parcel is unique, taking into account size, nearby development, and potential use, the
amount of damages would necessarily vary among class members. However, . . . differences in the
amount of potential damages among putative class members will not alone prevent class
certification.”). Indeed, “[i]f the need for individual damages calculations was determinative, ‘there
scarcely would be a case that would qualify for class status in this court.’” Land Grantors, 71 Fed. Cl.
at 624 (quoting Taylor v. United States, 41 Fed. Cl. 440, 444 (1998)).
13
representatives’ claims share the same essential characteristics as the claims of the class at large.”
Douglas R. Bigelow Trust, 97 Fed. Cl. at 678; see also Geneva Rock Products, 100 Fed. Cl. at 789 (“Courts
have found typicality if the claims or defenses of the representatives and the members of the class
stem from a single event or a unitary course of conduct, or if they are based on the same legal or
remedial theory.”). Movants satisfy the typicality requirement because, in their role as representative
parties, each has alleged (and proven) the same government conduct, stated (and proved) the same
claim, and sought (and achieved) the same liability determination as all Class Members.
E. The Class Representatives, and proposed Class Counsel, meet the RCFC 23 adequacy
requirements.
“There are two aspects to the adequacy requirement: (1) the existence of conflicts between the
putative class representative and members of the proposed class, and (2) the qualifications and
capabilities of proposed class counsel.” Silver Buckle Mines, 132 Fed. Cl. at 100 (citing Wal-Mart, 564
U.S. at 349 & n.5); see also Geneva Rock Products, 100 Fed. Cl. at 790 (adequacy requirements questions
whether the class members have interests that are “antagonistic” to one another, and whether the
proposed class counsel possess the experience, knowledge, and resources necessary to represent the
class competently). Both of those aspects of the adequacy requirement are met here.
1. The Class Representatives meet the adequacy requirements.
“The first component of the adequacy requirement addresses whether there are any conflicts
of interest precluding a plaintiff from serving as class representative.” Silver Buckle Mines, 132 Fed. Cl.
at 101 (citing Amchem Products, Inc. v. Windsor, 521 U.S. 591, 625-26 (1997)) (examining Fed. R. Civ. P.
23 and stating the inquiry “serves to uncover conflicts of interest between named parties and the class
they seek to represent”). “Class representatives must be ‘part of the class and possess the same interest
and suffer the same injury as the class members.’” Id.; see also Haggart, 89 Fed. Cl. at 535 (finding
adequacy question satisfied where “the interests of the named plaintiffs and the proposed class
members are aligned because all plaintiffs would assert the same legal claim”).
14
On this record, the interest of the Class Representatives cannot diverge from the interests of
the Class. The Class Representatives suffered flooding directly due to, and intended by, the
government’s Project. And they seek compensation for a Fifth Amendment taking, just the same as
each of the Class Members. The takings claim of each Class Member is not diminished or otherwise
negatively impacted by the adjudication of the takings claims of the Class Representatives (or vice
versa); nor are the Class Representatives otherwise antagonistic to other Class Members. Each Class
Representative has agreed to advance the claims of Class Members along with their own claims.
Through their participation in this case as bellwether test plaintiffs, each Class Representative has
demonstrated their commitment to pursue the litigation vigorously in the interests of the Class. And
each Class Member should be entitled to benefit from the findings rendered by this Court in
connection with the claims of the Class Representatives by choosing to opt-in to the Class.
2. Proposed Class Counsel meet the adequacy requirements.
The second component of the adequacy requirement examines whether the proposed class
counsel is “qualified, experienced, and generally able to conduct the litigation.” Barnes, 68 Fed. Cl. at
499. In evaluating potential class counsel, this Court examines the work counsel has done in identifying
or investigating potential claims in the action; counsel’s experience in handling class actions, other
complex litigation, and the types of claims asserted in the action; counsel’s knowledge of the applicable
law; and the resources that counsel will commit to representing the class. RCFC 23(g)(1)(A); Silver
Buckle Mines, 132 Fed. Cl. at 102.
In accordance with RCFC 23(g) and RCFC 83.1(c)(1), Movants request that Daniel Charest,
Edwin Armistead “Armi” Easterby, Charles Irvine, and Larry Vincent, all be appointed Class Counsel;
that Daniel Charest be designated “attorney of record” for the Class; and that the law firms of Burns
Charest, LLP, Irvine & Conner, PLLC, and Williams Hart Boundas Easterby, LLP be designated “of
counsel” to the Class. See Starr Int’l Co., Inc. v. United States, 109 Fed. Cl. 628, 637 (2013) (“Rule 83.1 of
15
this Court allows for ‘only one attorney of record in a case at any one time,’ who shall be ‘an attorney
(not a firm).’ RCFC 83.1(c)(1).22 All other attorneys assisting the attorney of record shall be designated
‘of counsel’ for the class.”); King v. United States, 84 Fed. Cl. 120, 129 (2008) (“The RCFC allow for
only ‘one attorney of record’ and such attorney ‘shall be an individual (and not a firm).’ RCFC
83.1(c)(1). All other attorneys shall be designated ‘of counsel.’”).
All four proposed counsel for the Class were selected by then-Chief Judge Braden to serve as
Co-Lead Counsel for the “Upstream” sub-docket to conduct pretrial jurisdictional and merits
discovery, brief and contest the government’s motion to dismiss, handle all pretrial scheduling and
other motion practice, and ultimate try the case—duties they successfully completed in a relatively
short litigation time frame given the scope and complexity of this matter. See ECF 68, 70, Master
Docket No. 17-3000L, In re Addicks and Barker (Texas) Flood-Control Reservoirs.23 In the years that
followed these appointments, the proposed Class Counsel have identified and investigated thousands
of potential claims on behalf of Class Members and have demonstrated an in-depth knowledge of the
applicable law and underlying facts during their service as Co-Lead Counsel in this action. In addition,
even without the prior appointment, proposed Class Counsel and their firms possess significant
relevant experience and resources to adequately represent the proposed Class.
Both Mr. Charest and Mr. Vincent have extensive, career-long experience with class actions
and complex litigation as their individual resumes demonstrate. See Exhibit A (Biography of Daniel
22
To the extent the Court determines that that class counsel should be a single individual, see, e.g., King,
84 Fed. Cl. at 129, Movants request Daniel Charest be appointed class counsel, with Armi Easterby,
Charles Irvine, and Larry Vincent (along with the firms of Burns Charest, LLP, Irvine & Conner,
PLLC, and Williams Hart Boundas Easterby, LLP) designated “of counsel” in accordance with RCFC
23(g) and RCFC 83.1(c)(1).
23
The inclusion of Mr. Easterby, who was appointed “to ensure the interests of individual plaintiffs
are represented,” ECF 70, Master Docket No. 17-3000L, at 2, reflects a uniform view on the propriety
of class treatment in this case.
16
Charest); Exhibit B (Biography of Larry Vincent). And the Burns Charest firm currently serves as lead
or co-lead counsel in complex cases throughout the country:
• Co-lead counsel: In re: Asbestos, Catalyst, and Silica Toxic Dust Exposure Litigation, (U.S.V.I.
Sup. Ct.). Representing several hundred individual workers exposed to asbestos while
working in a refinery on St. Croix, U.S.V.I.
• Co-lead counsel: In re: EpiPen (Epinephrine Injection, USP) Marketing, Sales Practices and
Antitrust Litigation, MDL No: 2785 (D. Kan.). Representing tens of thousands of
American consumers and businesses in a multidistrict class action designed to recoup
the overpayments on the EpiPen device.
• Lead counsel: Novoa v. The GEO Group, Inc. (C.D. Cal.). Representing classes of
thousands of detainees for minimum wage and forced labor claims. The case is set for
trial in January 2022.
• Co-liaison counsel: In re: Chesapeake Barnett Royalty Litigation #2, (48th District Court,
Tarrant County, Texas). Representing royalty and mineral owners in mass action against
operator for royalty underpayments.
• Co-lead counsel: In re Anadarko Basin Oil and Gas Lease Antitrust Litigation (W.D. Okla.).
Representing mineral owners against oil and gas companies for conspiring to rig bids
and limit competition for oil and gas leases.
• Co-lead counsel for the class: In re: Crude Oil Commodity Futures Litigation (S.D.NY.).
Represented thousands of investors who lost money after rogue trading companies
manipulated the market for crude oil. The case settled in 2015 and is undergoing
administration.
• Co-lead counsel for the class: Scola v. Facebook, Inc. (Superior Court, San Mateo County,
California). Represented nearly 14,000 content moderators injured in the course of their
work for Facebook. The case settled in 2020, was approved in 2021, and is undergoing
settlement administration.
See Exhibit C (Profile of Burns Charest LLP).
Likewise, Mr. Irvine and the Irvine & Conner firm have significant experience in the field of
environmental litigation and extensive knowledge of the critical facts and circumstances in this
particular case. Indeed, the first case filed in the Upstream Docket, the Micu action, was filed by Mr.
Irvine and that initial filing provided the blueprint for later-filed cases as well as the Master Complaint
for the Test Property Plaintiffs claims tried by this Court. Moreover, Mr. Irvine was a key member of
17
the trial team with and has over fifteen years’ experience in litigating cases in federal courts. His
individual resume is attached as Exhibit D (Resume of Charles Irvine).
Similarly, both Mr. Easterby and Williams Hart Boundas Easterby LLP have significant
experience as lead, co-lead, and class counsel in complex cases throughout the country:
• Class counsel: Miner v. Philip Morris Companies, Inc., (6th Division, Circuit Court of
Pulaski County, Arkansas). Co-Lead Class counsel in the only successful class action
case relating to Philip Morris’s marketing and sale of Marlboro Light cigarettes. Work
included negotiating and drafting the class settlement agreement, class notices, and
creation of a class compensation framework. Only one individual opted out of this
settlement, and there were no objections.
• Class counsel and trial counsel: Kaplan v. ExxonMobil Corp., Case No. 03-0079; Pascoag
Utility District v. ExxonMobil Corp., Case No. 02-2437; Waltz v. ExxonMobil Corp., Case
No. 02-2436, Superior Court of the State of Rhode Island. Represented families and
businesses in Pascoag, Rhode Island, in connection with MTBE contamination of the
town’s aquifer. The court approved a class action settlement, with only 3 opt-outs and
no objections.
• Class counsel and trial counsel: Sandoval v. Sunshine Buick and Casa Chevrolet, (1st Judicial
District, Santa Fe, New Mexico). Represented class of approximately 20,000
consumers in connection with their deceptive trade practices claims. Court confirmed
class action settlement agreement.
• Class counsel: In re: Trasylol Products Liability Litigation; MDL 1928 (S.D. Fla.).
Appointed as national class counsel in connection with consumer complaints and
associated claims regarding the marketing of Trasylol throughout the United States.
• Lead counsel: In re Deepwater Horizon, MDL 2179 (E.D. Louisiana). Represented

~1,400 class members in connection with their property damage and economic loss
claims under the Oil Pollution Act.
• Lead trial counsel: In re Diet Drugs, MDL 1203 (Pennsylvania, New Jersey, and New
Mexico courts). Represented over 1,000 people injured by Fen-Phen. Lead trial
counsel in over 400 class eligibility trials in Bergen County, New Jersey before Judge
Charles Walsh. Obtained favorable verdict in a 2006 bellwether trial in Philadelphia
Superior Court.
• Lead trial counsel: Bastrop Wildfire Litigation. Represented dozens of residents who lost
their homes and personal property to a man-made wildfire in Bastrop, Texas. The case
settled in 2012 after 3 days of trial.
See Exhibit E (Biography of Edwin Armistead “Armi” Easterby).
18
F. The Class meets the RCFC 23 superiority requirement.
“The final requirement that plaintiff must satisfy to maintain a class action is superiority. A
class action must be ‘superior to other available methods for fairly and efficiently adjudicating the
controversy.’” Silver Buckle Mines, 132 Fed. Cl. at 102 (quoting RCFC 23(b)(3)). “Among the factors to
be considered in determining superiority are (1) the potential class members’ interests in individually
controlling the prosecution of separate actions, (2) the extent and nature of any litigation concerning
the controversy already begun by class members, and (3) the likely difficulties in maintaining a class
action. Id. (citing RCFC 23(b)(3)). “Essentially, under this prong of the analysis, the court is obliged
to conduct a cost/benefit analysis, weighing any potential problems with the manageability or fairness
of a class action against the benefits to the system and the individual members likely to be derived
from maintaining such an action.” Id. (citing Barnes, 68 Fed. Cl. at 499). “[S]uperiority can be met when
‘a class action would achieve economics of time, effort, and expenses, and promote uniformity . . .
without sacrificing procedural fairness or bringing about other undesirable results.’” King, 84 Fed. Cl.
at 128 (quoting Barnes, 68 Fed. Cl. at 499). On this record, a class action as to the matters sought to
be determined on a class-wide basis is the superior vehicle for their determination.
1. The Class is superior because the Mendoza/Stauffer doctrine bars non-mutual

offensive collateral estoppel against the United States.
Previously, the Court recognized that the Master Complaint should be the one that contains
the class allegations.24 Subsequently, the Court approved individual short form complaints that allowed
individuals to not adopt the class allegations at the time they filed,25 and ordered that the liability phase
24
ECF 37 (Case Management Order selecting Master Amended Complaint ECF 18).
25
ECF 70 (Order approving agreed short form complaint ECF 63).
19
be tried for thirteen test properties.26 Since that time, thousands of plaintiffs have filed short form
complaints in this Court.27
The Court has also recognized the manageability problems that it and the non-bellwether
individual plaintiffs face in light of currently controlling law.28 At the Supreme Court, the government
has successfully argued that offensive collateral estoppel does not apply against the government in the
absence of mutuality; i.e., the parties must be the same. United States v. Mendoza, 464 U.S. 154 (1984)
(nonmutual offensive collateral estoppel is not available); United States v. Stauffer Chemical Co., 464 U.S.
165 (1984) (mutual defensive collateral estoppel is available). The Court of Federal Claims has adopted
the Mendoza/Stauffer doctrine in inverse condemnation cases. See Constantine v. United States, 14 Cl. Ct.
339, 343 (1988). Valid or not, that line of cases render class adjudication the only practical and effective
procedural mechanism for common issues and facts regarding liability.
Thousands of owners of real and personal private property in the upstream areas had their
property taken by the government for the same reasons and at the same time. This includes several
thousand whom have retained attorneys and filed lawsuits, others who have retained attorneys and
are waiting for the opportunity to opt-in to the class, and many other property owners that have no
attorney and/or may not even know that they have a potential claim for just compensation in this
litigation. Absent the mechanism provided by RFCF 23, each of those thousands of individual claims
for inverse condemnation will have to be separately litigated for liability and compensation purposes.
That process would tie up the resources of this Court and the government, and inherently create a
26
ECF 91 (Order selecting test properties).
27
Further, the undersigned counsel expect to file more complaints on behalf of hundreds and
hundreds of additional plaintiffs, all of whom fall within the Class definition, support this motion, and
intend to opt into the Class when certified.
28
Hr’g. tr. 16: 5–21 (Jan 30, 2018); see also discussion of Winstar savings and loan cases by Braden, C.J.
Hr’g. tr. 22: 18 – 19: 1; 26: 4–21; 58: 6–17 (Dec. 20, 2017).
20
backlog and delay of case resolutions, for decades to come. The economies of time, effort, and
expense, and the promotion of uniform decision as to persons similarly situated – “without sacrificing
procedural fairness or bringing about other undesirable results” – confirm the superiority of a class-
wide determination of liability is superior to separately litigating thousands of identical inverse
condemnation claims. Amchem, 521 U.S. at 615.
2. The Class is superior because it provides a court-approved mechanism to

inform individuals that the government took a permanent flowage easement
over their property.
This Court found the government liable for taking a permanent flowage easement on each of
the thirteen test properties. 146 Fed. Cl. at 264. The Court further found that the government flowage
easement extends to the maximum pool elevation as of “the date on which the government’s physical
possession of the property during the Harvey event reached its highest level—August 30, 2017.” 148
Fed. Cl. 274, 277.
In an inverse condemnation flooding matter like this, the government is not required to notify
property owners that it took a permanent flowage easement. And without more, upstream property
owners may never know about their claims and rights unless they participate in the Class. The notice
provisions required by RCFC 23(c)(2) provide an essential means to notify the thousands of Class
Members about the effect of the government’s actions, their legal rights to just compensation, and the
applicable deadline to assert a claim. The notice to Class Members will be in a form and contain
content approved by this Court.
3. Class Members have little or no interest in individually controlling the

prosecution of many, many separate actions to resolve the issues for which
certification is sought.
Courts consider two aspects of potential Class Members’ claims in determining whether
individuals are likely to want to conduct separate lawsuits: the cohesion of the class and the size of the
individual claims. Either “the class may have a high degree of cohesion and prosecution of the action
21
through representatives would be quite unobjectionable, or the amounts at stake for individuals may
be so small that separate suits would be impracticable.” Bell, 123 Fed. Cl. at 405. Both apply here.
This case presents neither need nor practical justification for the prosecution of each individual
Class Member’s claim on the pure liability issue for which certification is sought. The government’s
liability under the Fifth Amendment has already been adjudicated through an extensive jurisdictional
and merits discovery process; motions to dismiss and other pretrial issues have been joined and
resolved; and the case tried on the merits over a two-week period involving hundreds of exhibits and
dozens of witnesses. Based on that experience, even if no additional discovery were done, the
repetitive trial of thousands of additional individuals is neither desirable nor necessary. Even if the
Court assumed a conservative figure of 6,500 Class Member claimants who could somehow be joined
under RCFC 20 into, say, 500 mass actions of takings claims held by 13 individual Class Members (as
was the case for the Test Properties’ liability trial), the resulting 1,000 trial weeks would require the
scheduling of 19.23 years of trial time (assuming not a single trial day is missed or skipped for
unforeseen necessity or any holiday), plus consume time and resources of the Federal Circuit to
adjudicate the likely appeals by the losing parties.29 Even if it is assumed that each potential Class
Members’ claim is of such a significant monetary value that they could be expected to pursue it on an
individual basis, it is unlikely (to say the least) that a qualifying litigant would choose to forego the
certainty of a liability finding in order to avoid whatever terms this Court places on the exercise of a
choice to opt-in to the Class. In short, the high degree of cohesion of the class dominates the
consideration of the superiority requirement and compels the conclusion that a class action remains
the superior means of adjudicating these claims.
29
Movants urge this estimate is likely woefully underestimated because the number of individual
claimants likely doubles the assumed 6,500 figure.
22
4. The extent and nature of the litigation concerning the issues for which
certification is sought supports class certification.
The superiority determination also considers “the extent and nature of any litigation
concerning the controversy already begun by class members.” RCFC 23(b)(3)(B). This factor provides
another means of assessing an individual plaintiff’s interest in controlling their own litigation. “[I]f
individuals have not filed other suits, they [would] appear to have little interest in pursuing individual
litigation, and hence, a class action [would] likely be superior.” Bell, 123 Fed. Cl. at 406. While other
potential “upstream” Class Members have filed individual actions, these individuals represent only a
percentage of the overall Class. Most importantly, as discussed above, the economics and litigation
effort required to pursue an action on an individual basis weighs against a significant number of eligible
Class members foregoing the available liability finding to pursue their own cause. Undoubtably the
class mechanism is superior on this record.
5. The likely difficulties in maintaining a class action are minimal.
Finally, the proposed Class is manageable because its members are readily identifiable: the
ownership interests are a matter of simple review of public records; and notice can be readily given
through direct mailings and localized advertising. See Moore v. United States, 41 Fed. Cl. 394, 397–98
(1998) (finding 2000-plus class members to be a “large but manageable” group because the potential
class consists of “readily identifiable private landowners located in a defined geographic area, which
provides a situation amenable to providing notice”). Compared to the joinder and/or separate
adjudication of thousands of individual claims, a class action “would achieve economies of time, effort,
and expenses, and promote uniformity.” Barnes, 68 Fed. Cl. at 499. The minimal potential for
difficulties in maintaining a class action in this unique circumstance is further advanced by the potential
for court-appointed special masters to handle any individual issues regarding the quantum of just
compensation due each Class Member. See Moore, 41 Fed. Cl. at 399 n.3; see also United States v. Exxon
Corp., 773 F.2d 1240, 1321 (Temp. Emer. Ct. App. 1985).
23
Ultimately, on this record, a class action suit is the superior method of litigation because it
allows the Court, in one action, to resolve the issue of whether the design, construction, modification,
and operation of Addicks and Barker dams, which resulted in the taking of a permanent flowage
easement as to all Class Members. See Haggart, 89 Fed. Cl. at 535.
CONCLUSION
For the reasons stated, the Court should certify the Class, appoint Class Counsel, and allow
the many thousands of upstream flood victims to take advantage of the work done by the Class
Representatives and proposed Class Counsel to date in this case: a liability finding against the
government for a Fifth Amendment taking of a permanent flowage easement across the entire Class
stemming from the design, construction, modification, and operation of Addicks and Barker dams.
Dated: September 24, 2021.
24
Respectfully submitted,
/s/ Daniel H. Charest

Daniel H. Charest
E. Lawrence “Larry” Vincent
Burns Charest LLP
900 Jackson Street, Suite 500
Dallas, Texas 75202
469-904-4550
dcharest@burnscharest.com
lvincent@burnscharest.com
Co-Lead Counsel for Upstream Plaintiffs
as to Jurisdictional Discovery, Motion to
Dismiss, and Scheduling
Charles Irvine
Irvine & Conner PLLC
4709 Austin Street
Houston, Texas 77004
713-533-1704
charles@irvineconner.com
Edwin Armistead “Armi” Easterby

Williams Hart Boundas Easterby, LLP
8441 Gulf Freeway, Suite 600
Houston, Texas 77017
713-230-2200
aeasterby@whlaw.com
25
EXHIBIT A
Case 1:17-cv-09001-CFL Document 397-1 Filed 09/24/21 Page 1 of 3
Daniel H. Charest
Burns Charest LLP
Dallas | Texas | 75202
Direct: (469) 904-4555
Mobile: (214) 681-8444
dcharest@burnscharest.com
Daniel Charest gets results for his clients in high-stakes

litigation. His career reflects a history of big wins in the
court room and high-profile settlement agreements. He
achieves those results through a combination of smarts
and daily hard work.
Daniel developed his trial-lawyer skills at a nationally-recognized litigation
boutique, where he became a partner, tried cases, and ran his clients’ cases.
Over the years, he honed his skills into an effective, efficient approach that
focuses on his client’s needs and achieving the desired outcome. He left that firm
to establish Burns Charest LLP. And, now, he attacks his clients’ problems with
skills, smarts and hard work.
Daniel’s body of work reaches beyond any particular practice area. He has
handled matters involving antitrust, breach of contract, oil & gas, financial-
service company disputes, business torts, trade secret misappropriation and
unfair competition, consumer protection, class actions, fraud, insurance bad
faith, and wrongful death. His work has taken place across the United States:
federal and state courts from coast to coast with plenty of places in between.
Daniel’s docket has involved procedural and jurisdictional challenges such as
removal and remand, class certification, transfers, temporary restraining orders,
temporary injunctions, and appeals. In all, the body of work is, simply, high-
stakes litigation.
I recommend Daniel Charest without reservation

for handling high-stakes litigation. Daniel is one
of the hardest working, most talented, and
easiest to work with trial attorneys I have come
across.
-Jason Doughty
Senior Vice President Kosmos Energy Ltd.
In addition to his legal experience,

Daniel brings real-world experience
developed from working in leadership
roles in industry at a young age that
involved travel all over the globe and
required cooperation with all forms
of culture and character. While
maintaining his full workload, Daniel
has served as a pro bono mediator in
a program administered by the Dallas
courts, called “Settlement Week.”
And, last but not least, he is a proud
husband and father.
Honors and Professional Involvement
Texas Lawyers’ “Attorney of the Year 2020” “[Daniel is] the kind of
Lawdragon 500 Leading Plaintiff Consumer lawyer I need in difficult,
Lawyers, 2021 time constrained matters.
Lawdragon 500 Leading Plaintiff Financial Tenacious, aggressive but
Lawyers, 2021 practical. [He is] looking out
2020 “Winning Litigator” by National Law Journal for client’s interests at all
Best Lawyers in America, 2017-2022 times. Decisive and
prepared, what else can I
Texas Super Lawyers by Thomson Reuters
(2019-2021) say?”
- David Brooks
“Local Litigation Star” by Benchmark Litigation Chief Operating Officer and General Counsel
of Ashford Hospitality Trust, Inc.
Best Lawyers in Dallas, D Magazine 2020-2021
Managing Editor of the Tulane Law Review,

2003-2004
Oil & Gas Price Fixing
Clerked for Hon. Edith Brown Clement on the U.S. Daniel represents hundreds of Oklahoma property
Court of Appeals for the Fifth Circuit owners who entered into oil and gas leases with
two of the nation’s largest gas companies.
Admitted to practice in the District of Columbia, Unbeknownst to his clients, those same
Texas, Virginia (inactive), and the U.S. Virgin companies had agreed to fix the prices they were
Islands, as well as many federal and appellate offering on gas leases and allocate the market
courts between them.
Dental Crowns
Representative Cases Daniel represents thousands of American dentists
who purchased faulty material from one of the
Chesapeake Barnett Royalty Litigation nation’s largest dental manufacturers. The
Daniel currently serves as co-liaison counsel for dentists used the materials to create dental
royalty and mineral owners in a mass action crowns, which failed at unprecedented rates.
against operators for royalty underpayment. Plaintiffs are suing to recoup the damages they
Additionally represents many individual client incurred to replace those crowns.
groups within the MDL. Currently pending in
Tarrant County District Court. Asbestos Exposure
Served as co-lead counsel on behalf of several
In re Upstream Addicks-Barker (Texas) Flood- hundred individual workers exposed to asbestos
Control Reservoirs and other toxic dusts while working in a refinery
Daniel was recognized for his work as lead trial on St. Croix, U.S.V.I.
counsel in securing a landmark win for Houston-
area property owners in the largest takings case in Securities Litigation
U.S. history. The U.S. Court of Federal Claims Defended client Kosmos Energy against plaintiff’s
held the United States liable for flooding and motion to certify a class in a securities action set
property damage caused by the Army Corps of in the Northern District of Texas. Served as lead
Engineers’ management of Houston-area attorney on the case through completion.
reservoirs during Hurricane Harvey in 2017. The
ruling allows more than 10,000 property owners to
recover significant flood-damage compensation
for their Fifth Amendment taking claim.
EXHIBIT B
Larry Vincent
Burns Charest LLP
Direct: (469) 904-4557
lvincent@burnscharest.com
Larry Vincent's legal experience covers a wide range of matters at all judicial
levels. He has litigated complex commercial cases, securities and antitrust
class actions, mass tort matters, and both eminent domain and inverse
condemnation cases, and has done so both in trial and on appeal, on behalf of
both plaintiffs and defendants, and at every level of both state and federal
courts.
Most recently, Larry and the Burns Charest team filed suit on behalf of
Chambers, Liberty, and Jefferson County landowners for the flooding of their
property caused by the State of Texas. Plaintiffs' properties were flooded
during Tropical Storms Harvey and Imelda by stormwater that was blocked by a
concrete traffic barrier which the Texas Department of Transportation erected
which blocks the southerly flow of rainfall runoff.
Larry was born and raised in Port Neches, Texas and received a B.B.A. in
Economics from Baylor University in 1984. After Baylor, he attended the
University of Texas School of Law in Austin, where he served as the Managing
Editor of the Texas Law Review, was elected to the Order of the Coif, and was
a member of the Legal Eagles.
After receiving his law degree with honors in 1987, Larry had the privilege of
clerking for the Honorable Anthony M. Kennedy, both on the United States
Court of Appeals for the Ninth Circuit and the United States Supreme Court.
Representative Cases:
In re Upstream Addicks-Barker
(Texas) Flood- Control Reservoirs
Daniel was recognized for his work as
lead trial counsel in securing a
landmark win for Houston-area
property owners in the largest
takings case in U.S. history. The U.S.
Court of Federal Claims held the
United States liable for flooding and
property damage caused by the Army
Corps of Engineers’ management of
Houston-area reservoirs during
Hurricane Harvey in 2017. The ruling
allows more than 10,000 property
owners to recover significant flood-
damage compensation for their Fifth
Amendment taking claim.
Representation of landowner in Representation of landowner in

eminent domain action involving eminent domain action against
challenges to expert testimony and public transit authority regarding
standard for damages awarded for vested right to rail service accorded
county’s partial taking of commercial by federal statutory and state
property to widen street. Dallas property law. Wilbert Family Ltd.
County v. Crestview Corners Car P'ship v. DART, 371 S.W.3d 506
Wash, 370 S.W.3d 25 (Tex. App. – (Tex. App. – Dallas 2012, pet.
Dallas 2012, pet denied). dism’d).
2
EXHIBIT C
Burns Charest LLP

Dallas
Tel: (469) 904-4550
New Orleans
365 Canal Street, Suite 1170
New Orleans | Louisiana | 70130
Tel: (504) 799-2845
Washington, D.C.
4725 Wisconsin Ave. NW Suite 200
Washington | D.C. | 20016
Tel: (202) 577-3977
www.burnscharest.com
About Us
Burns Charest is a young firm with a dynamic and impressive
pedigree. Our founders were partners and attorneys at some of
the finest commercial litigation boutiques in the nation. In
2015, we came together to build a new, aggressive platform to
pursue our clients’ interests.
We know that experience matters to clients and judges. And
we have it. Our lawyers have actually tried a complex class
action to verdict, served as co-lead counsel in multi-district
litigation, secured a $106 million judgment in the first of the
2008 mortgage meltdown cases to go to trial, obtained
significant settlements in royalty-owner disputes, and regularly
represented individuals and businesses in complex, bet-the-
company cases.
We currently serve as co-lead counsel in national antitrust and
commodity class actions. We represent numerous royalty
owners in disputes against oil and gas giants. We serve
hundreds of individuals whose lives have been threatened by
exposure to asbestos. And we are helping landowners clean up
decades of environmental damage.
We have a strong team. Our lawyers are some of the most
experienced and talented of their generation, and we are happy
to match our credentials against others.
Our focus is on the future. We believe firmly that our nation’s
legal system was designed to protect individuals and businesses
from the wrongdoing of others and to assure a level playing
field. As lawyers, we have an incredibly important role to play
in making that system work for our clients. And we will not shy
away from a fight to protect their interests.
We are Burns Charest LLP.

Firm Leadership Experience
• Co-lead counsel: In re Upstream Addick and Barker Flood-Control Reservoirs.

(U.S. Court of Federal Claims) Representing property owners in federal takings
case relating to flooding during Hurricane Harvey.
• Co-lead counsel: In re Plaid Inc. Privacy Litigation (N.D. Ca.) Representing

consumers against fintech apps for collecting sensitive transactional private
banking data without consumers’ knowledge or consent.
• Member of Plaintiff Steering Committee: In re TikTok, Inc., Consumer Privacy

Litigation (N.D. Ill.). Representing app users against TikTok, Inc. and
ByteDance, Inc. for their use of biometric information obtained from app users
without prior consent.
• Co-lead counsel: In re: EpiPen (Epinephrine Injection, USP) Marketing, Sales

Practices and Antitrust Litigation, MDL No: 2785 (D. Kan.). Representing tens
of thousands of American consumers and businesses in a multidistrict class
action designed to recoup the overpayments on the life-saving EpiPen device.
• Member of five-person executive committee: In re Johnson & Johnson Talcum

Powder Products Marketing, Sales Practices and Products Liability Litigation
(D.N.J.). Representing thousands of women alleging that talcum powder
products cause ovarian and uterine cancer.
• Co-lead counsel: In re Anadarko Basin Oil and Gas Lease Antitrust Lit. (W.D.
Okla.). Representing mineral owners against oil and gas companies for
conspiring to rig bids and limit competition for oil and gas leases.
• Co-liaison counsel: In re: Chesapeake Barnett Royalty Litigation #2, MDL No.
96-000003-15 (96th District Court, Tarrant County, Texas). Representing
royalty and mineral owners in mass action against operator for royalty
underpayments.
• Co-lead counsel: In re: Asbestos, Catalyst, and Silica Toxic Dust Exposure
Litigation, Master Docket No. SX-15-CV-096 (U.S.V.I. Sup. Ct.). Representing
several hundred individual workers exposed to asbestos while working in a
refinery on St. Croix, U.S.V.I.
• Executive committee member: In re: Domestic Airlines Antitrust Litigation

(D.D.C.). Representing millions of Americans who overpaid for airline tickets
after the nation’s largest carriers entered into an illegal conspiracy to fix
prices and limit airline capacity.
• Co-lead counsel: Bhatia et al v. 3M Company (D. Minn.). Representing

thousands of American dentists who purchased faulty material from one of the
nation’s largest dental manufacturers for use in dental crowns, which failed at
unprecedented rates.
• Co-lead counsel: In re: Crude Oil Commodity Futures Litigation (S.D.NY.).

Represented thousands of investors who lost money after rogue trading
companies manipulated the market for crude oil. Burns Charest settled the
case in 2015 and are administering the settlement.
• Lead counsel: In re Automotive Parts Antitrust Litigation (E.D. Mich.). On

track to recover over $700 million for indirect purchasers as part of an MDL
accusing auto parts manufacturers of conspiring to fix prices on auto parts
(Warren Burns was lead counsel while at Susman Godfrey and retained an
interest in the case after founding Burns Charest).
EXHIBIT D
Charles Irvine
Irvine & Conner, PLLC
4709 Austin, Houston, TX 77004
charles@irvineconner.com
713-533-1704
Charles represents clients in state and federal court, and in matters

before the Texas Commission on Environmental Quality, U.S. Army
Corps of Engineers, Nuclear Regulatory Commission, and the State
Office of Administrative Hearings. Previous cases include
challenges to air permits, nuclear licenses, Clean Air Act citizen suits,
Endangered Species Act litigation, and NEPA litigation. He was
appointed by the Court of Federal Claims to be Lead Counsel in an
inverse condemnation case by thousands of plaintiffs against the
United States for the taking of a permanent flowage easement at the
Addicks and Barker Reservoirs during Tropical Storm Harvey. In re
Upstream Addicks and Barker (Texas) Flood Control-Reservoirs, Sub-
Master Docket 17-9001L.
He is an Adjunct Professor at the University of Houston law Center,

where he teaches classes in Texas Coastal and Ocean Law,
Endangered Species and Biodiversity Law, Environmental Law, and
Practice of Environmental Law.
Before entering the legal field, Charles worked in Greece as a

program leader on environmental projects that protected sea turtles
and marine mammals in coastal areas. During this time, he
participated in extensive efforts to design and establish protected
areas, eventually resulting in a new National Park. As an
independent consultant, he researched and wrote comprehensive
management plans for seven Mediterranean protected coastal areas
under contracts with the World Wildlife Fund and European Union
funded initiatives.
Education
• J.D., University of Houston Law Center
• M.Sc. in Conservation, University College London
• B.Sc., Human Sciences, University College London
Bar and Court Admissions

• Texas
• Fifth Circuit Court of Appeals
• U.S. District Courts, Southern District of Texas, Western District
of Texas, Eastern District of Texas
• Court of Federal Claims
EXHIBIT E
Edwin Armistead “Armi” Easterby is a partner with Williams Hart Boundas Easterby, L.L.P.
(“Williams Hart”), with its principal office in Houston, Texas. Mr. Easterby heads the William Hart’s
commercial & consumer trial section, which prosecutes complex civil litigation throughout the United
States. Prior to joining Williams Hart in 2005, Mr. Easterby was an associate and equity partner with
the Houston-based firm of Grey Reed.
Armi Easterby graduated cum laude from the University of Houston Law Center in May 1996,
where he also served as an associate editor on the University of Houston Law Review. Mr. Easterby
became licensed to practice in Texas in November of 1996. He is also licensed to practice before the
United States Supreme Court; the United States Court of Appeals for the Fifth Circuit, Federal Circuit,
and Tenth Circuit; the United States Court of Federal Claims; all federal district courts in Texas, and
in various other states. He has significant experience trying cases throughout the country in both state
and federal courts, as well as handling over a dozen arbitrations. He also has substantial appellate court
experience and has argued before the United States Court of Appeals for the Fifth, Tenth, and Federal
Circuits. Mr. Easterby also serves on the board of directors of the Texas Trial Lawyers Association.
Over the past twenty-five years, Mr. Easterby has devoted the vast majority of his professional
career to complex commercial and environmental litigation, including litigating inverse condemnation
claims, Oil Pollution Act claims, property damage claims related to mass-incidents, consumer
protection actions, intellectual property claims, and product liability mass tort actions, Foreign
Sovereign Immunity Act cases, and Uniform Commercial Code claims, amongst others. This work has
encompassed serving as lead, co-lead, and class counsel in complex cases throughout the country,
including:
• Co-Lead Counsel: In re Upstream Addicks and Barker (Texas) Flood-Control Reservoirs, No.
17-9001L, in the U.S. Court of Federal Claims. Co-Lead Counsel for local “upstream”
property owners’ Fifth Amendment inverse condemnation claims against the United
States the following government-induced flooding of over 7,000 acres of private land
during and after Harvey. Mr. Easterby served as co-lead trial counsel in the May 2019
Easterby Biography 1
September 24, 2021
liability trial, which culminated in a December 2019 finding that the government’s
actions and resultant government-induced flooding of upstream plaintiffs’ properties
constituted a taking under the Fifth Amendment. The damages phase of this case is
currently underway and is tentatively scheduled for trial in March 2022.
• Class counsel: Miner v. Philip Morris Companies, Inc., (6th Division, Circuit Court of
Pulaski County, Arkansas). Co-Lead Class counsel in one of the only successful class
action case relating to Philip Morris’s marketing and sale of Marlboro Light cigarettes.
Work included negotiating and drafting the class settlement agreement, class notices,
and creation of a class compensation framework. Only one individual opted out of
this settlement, and there were no objections.
• Class Counsel and Trial Counsel: Kaplan v. ExxonMobil Corp., Case No. 03-0079;
Pascoag Utility District v. ExxonMobil Corp., Case No. 02-2437; Waltz v. ExxonMobil
Corp., Case No. 02-2436, Superior Court of the State of Rhode Island. Represented
families and businesses in Pascoag, Rhode Island, in connection with MTBE
contamination of the town’s aquifer. The court approved a class action settlement,
with only 3 opt-outs and no objections.
• Class Counsel and Trial Counsel: Sandoval v. Sunshine Buick and Casa Chevrolet, (1st
Judicial District, Santa Fe, New Mexico). Represented class of approximately 20,000
consumers in connection with their deceptive trade practices claims. Court confirmed
class action settlement agreement.
• Class Counsel: In re: Trasylol Products Liability Litigation; MDL 1928 (S. Dist. Florida).
Appointed as national class counsel in connection with consumer complaints and
associated claims regarding the marketing of Trasylol throughout the United States.
• Lead Counsel: In re Deepwater Horizon, MDL 2179 (E.D. Louisiana). Represented

~1,400 class members in connection with their property damage and economic loss
claims under the Oil Pollution Act.
• Lead Trial Counsel: In re Diet Drugs, MDL 1203 (Pennsylvania, New Jersey, and New
Mexico courts). Represented over 1,000 people injured by Fen-Phen. Lead trial
counsel in over 400 class eligibility trials in Bergen County, New Jersey before Judge
Charles Walsh. Obtained favorable verdict in a 2006 bellwether trial in Philadelphia
Superior Court.
• Lead Trial Counsel: Bastrop Wildfire Litigation. Represented dozens of residents who
lost their homes and personal property to a man-made wildfire in Bastrop, Texas. The
case settled in 2012 after 3 days of trial.
Easterby Biography 2
September 24, 2021

2021-09-24 Upstream Addicks - Doc 397 Motion For Class Certification

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2021-09-24 Upstream Addicks - Doc 397 Motion For Class Certification

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Case 1:17-cv-09001-CFL Document 397 Filed 09/24/21 Page 1 of 30

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

In re UPSTREAM ADDICKS AND BARKER

THIS DOCUMENT APPLIES TO: Judge Charles F. Lettow

ALL UPSTREAM CASES

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Daniel H. Charest Charles Irvine

Amchem Products, Inc. v. Windsor,

In re Upstream Addicks & Barker (Tex.) Flood-Control Reservoirs,

FED. R. CIV. P. 23 ......................................................................................................................................... 6, 14

RCFC 23(b)(3) ..................................................................................................................................... 10, 19, 23

“Class” and, individually, the “Class Members”).

II. FACTS APPLICABLE TO THE CLASS REPRESENTATIVES AND ALL CLASS

Dams “beyond the government owned land limits.”8

devastating economic loss.

government-controlled inundation of their properties by the impounded floodwater from Harvey).

held by the Class Members. No valid argument to the contrary exists.

III. ARGUMENT AND AUTHORITY

of RCFC 23 and furthers each policy RCFC 23 aims to promote.

A. The Class definition identifies Class members with objective criteria.

consisting of persons with similar claims:

B. The Class meets the RCFC 23 numerosity requirement.

(cited and quoted in Land Grantors).

C. The Class meets the RCFC 23 commonality requirement.

1. There are questions of law or fact common to the Class.

Barnes, 68 Fed. Cl. at 496 n.6.

susceptible to generalized, class-wide proof.’”) (cleaned up) (quoting 2 William B. Rubenstein,

NEWBERG ON CLASS ACTIONS § 4:50, at 196–97 (5th ed. 2012)).

to the Class Members’ claims.

3. The common questions predominate over any questions affecting only

(quoting Curry v. United States, 81 Fed. Cl. 328, 334 (2008)).

As discussed above, the central, predominant questions to be decided on a class-wide basis

damages for subsequent, individual determinations—secures the advantages and economies of

opts-into the Class.21

D. The Class meets the RCFC 23 typicality requirement.

1. The Class Representatives meet the adequacy requirements.

2. Proposed Class Counsel meet the adequacy requirements.

Buckle Mines, 132 Fed. Cl. at 102.

83.1(c)(1). All other attorneys shall be designated ‘of counsel.’”).

relevant experience and resources to adequately represent the proposed Class.

or co-lead counsel in complex cases throughout the country:

See Exhibit C (Profile of Burns Charest LLP).

individual resume is attached as Exhibit D (Resume of Charles Irvine).

• Lead counsel: In re Deepwater Horizon, MDL 2179 (E.D. Louisiana). Represented

See Exhibit E (Biography of Edwin Armistead “Armi” Easterby).

F. The Class meets the RCFC 23 superiority requirement.

be determined on a class-wide basis is the superior vehicle for their determination.

1. The Class is superior because the Mendoza/Stauffer doctrine bars non-mutual

complaints in this Court.27

procedural mechanism for common issues and facts regarding liability.

wide determination of liability is superior to separately litigating thousands of identical inverse

condemnation claims. Amchem, 521 U.S. at 615.

2. The Class is superior because it provides a court-approved mechanism to

Fed. Cl. 274, 277.

content approved by this Court.

3. Class Members have little or no interest in individually controlling the

the superior means of adjudicating these claims.

class mechanism is superior on this record.

5. The likely difficulties in maintaining a class action are minimal.

easement as to all Class Members. See Haggart, 89 Fed. Cl. at 535.

Dated: September 24, 2021.

/s/ Daniel H. Charest

Edwin Armistead “Armi” Easterby