Update: Addicks Barker “Upstream” Flooding Lawsuit

In Irvine & Conner’s lawsuit on behalf of “upstream” property owners affected by flooding during Tropical Storm Harvey, the Court ruled that the “Master Amended Complaint for Upstream Cases” that Irvine & Conner’s team filed would be the Master Complaint for all upstream cases. All other complaints and cases have been put on hold (or “administratively stayed”). A copy of the Court’s Case Management Order is here. Also today, the Court denied the Government’s motion for a more definite statement “in light of the light of the filing of the Master Amended Complaint for Upstream Plaintiffs.” A copy of the Master Complaint is here.

The Court’s orders followed a lengthy, robust telephonic hearing that the Court had with the Government lawyers and Upstream Co-Lead counsel. During the hearing, we explained our plan to the judge and advocated for an expedited schedule. So far, the Court continues to be receptive and commended our plan:

CHAREST (Irvine & Conner’s co-counsel): Your Honor, yes, our anticipation…is when we’re talking about the merits and when we have gone past the jurisdictional sort of step there, that’s when we would anticipate raising class, with the idea that it be… argued and briefed and determined concurrent with…a liability ruling…by the end of 2018. That’s the concept, that we [achieve] a ruling on liability and a ruling on class, hopefully concurrently, and moving from there. That’s my big picture plan.

THE COURT: That is a remarkably ambitious but commendable goal, and we hope we can achieve that result in terms of timing.

The Court is requiring the use of “test properties” for the first phase of the lawsuit, so that thousands of cases do not overwhelm the court system. Irvine & Conner’s team expects about 15 test cases will be actively litigated, with the Co-Lead Counsel selecting 10 test cases. I&C’s clients who are serving as “test properties” are also willing to be “class representatives” so that, if we are successful in proving the Government is liable for their flooding, then we can apply that liability finding to everyone who flooded within the reservoir pools of Addicks and Barker.

If successful, this would mean every individual does not have to go through the court process to prove the Government is responsible for their flooding. But this is not a typical class action because, while the liability finding is common for everyone, the damages that people suffer vary from home to home. Also, this is not a typical class action because each client’s damages could differ and will require individualized work to prove.


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