Brian Slattery Photo

Demolition at Church Street South.

Church Street South’s former tenants might have a basis to argue that landlord Northland Investment Co. acted unscrupulously in letting the complex fall apart, but they’d have a tougher time proving the developer acted negligently.

Superior Court Judge Linda Lager dropped those hints about how she’s weighing the merits of a class action lawsuit that would allow former tenants to argue their points collectively at one trial, rather than at hundreds of separate proceedings.

Several families filed a case in state court in November 2016, seeking monetary damages against Massachusetts-based Northland for the respiratory problems, skin disorders, migraines, loss of furniture, dislocation and homelessness suffered by the all the families at the 301-unit, federally subsidized complex because of rampant mold, leaking ceilings and other hazards. Those problems led the government to condemn the 301-unit apartment complex across from Union Station, which is now being demolished to make way for a larger mixed-income, mixed-use development.

New Haven County Bar Association

Judge Linda Lager.

For months, Judge Lager has been considering how big the case should be: Whether to restrict it to the five named plaintiffs and their kids or to open it to hundreds more unnamed families.

The parties have submitted thousands of pages of legal precedents, deposition excerpts, pictures and expert opinions in recent months. The attorneys argued their points in person for the first time before Judge Lager in state Superior Court in Waterbury last week.

Throughout the six-hour hearing, Lager instructed the parties to go point by point through the legal requirements for a class-action lawsuit, then asked how those applied to each of the charges in the complaint.

“The job here is not to resolve factual issues,” she said, “but to identify any factual and legal issues that are common to the class.”

As the attorneys quibbled about how typical it was to find mold in each apartment, a dozen former residents watched the proceedings. At least two pulled on inhalers when their airways tightened from asthma.

Past precedent has established that class action lawsuits save everyone time and money. Moreover, they look out for clients who can’t afford to take on corporations alone, at the same that they also protect companies from inconsistent orders in multiple courtrooms.

The cases can be a headache for defendants who face larger potential claims, and who lose the ability to pick off defendants one by one with settlement offers.

Christopher Peak Photo

Barbara Goren, Alexander Taubes, and David Rosen, attorneys for the tenants.

David Rosen, a civil rights lawyer representing the tenants, alleges that Northland violated the law in this case by collecting rents for apartments that had become uninhabitable. The suit accuses Northland of a large-scale “demolition by neglect” — allowing conditions to deteriorate so badly that the complex would need to be torn down — at the expense of tenants’ health and safety.

Throughout last week’s hearing, Rosen referred back to a June 2016 email that Peter Standish, the senior vice president of Northland, sent to Serena Neal-Sanjurjo, the director of New Haven’s Livable City Initiative, about jointly applying for grant money to rebuild Church Street South. An attachment that Standish said he’d taken a “first cut” at listed the complex’s “design deficiencies,” including a “proliferation of mold and moisture in dwelling units due to water infiltration resulting from deteriorated roofs, exterior wall structures, plumbing and drainage systems.”

Rosen said that email proved Northland knew about problems at the complex and didn’t respond adequately.

“That identifies and frames the common issues,” Rosen said. “The defendant had knowledge of the danger to tenants of Church Street South.”

Rosen acknowledged differences in how badly individual apartments deteriorated. But he argued that Northland’s “entire course of conduct” in largely ignoring moisture and mold was the same throughout.

Northland’s defense lawyers argued in response that the tenants’ experiences varied so widely that they can’t be dealt with all at once. They demanded individual proof of harm and damage.

Kevin McGinty, one of the defense attorneys, sought to compare the case to a 2011 decision by the U.S. Supreme Court to toss out a class action lawsuit filed by six female Wal-Mart employees who had argued that the company’s policies resulted in lower pay and slower promotions for women. The court ruled the plaintiffs’ claims were too dissimilar to be dealt with at once.

Lager said she doesn’t think that precedent applies in this case.

“Discrimination isn’t a leaking roof, bad pipes and broken windows — a complex that’s ‘functionally obsolete,’ in the words of Northland,” she said, referring to language in the company’s September 2015 decommissioning plan. “It was built in a manner, as [Northland’s] experts talk about, that had a bad design from the get-go for the Northeast.”

In a thought experiment, she wondered aloud whether Northland would make the same arguments about a 301-unit skyscraper with a defective ventilation system. “If that [tower] blows up, who’s responsible?” she asked. Is there a difference if the same number of units with the same fundamental problem are scattered across 22 buildings?

As the arguments went back and forth, Lager suggested that a single narrative could be established for all of Church Street South. But she questioned which specific violations of the law plaintiffs could actually prove.

“The real issue, I’m inferring from [Rosen’s] argument, is that the claim appears to be that there were latent defects in the entirety of Church Street South: defects that were unknown to the prospective tenants, hidden on the roof, behind the walls, in the plumbing,” she concluded.

Lager seemed most open to claims under the Connecticut Unfair Trade Practices Act (CUTPA), which the state legislature passed to encourage lawyers to act like “private attorneys general.”

CUTPA “doesn’t require individualized proof as to how it affected [Church Street South tenants], only an overarching scheme that ultimately impacts the class,” Lager said. “I don’t think they’d have to prove habitability [of individual units], but that [Northland’s overall strategy] was unfair, immoral and for the purpose of getting the complex decommissioned. It is an issue, a common issue, whether Northland’s actions were unfair or deceptive.”

Lager said that a class-action lawsuit on those grounds would still be complicated if the tenants won, because the court would have to assign damages to each family, but she noted that a class-action lawsuit would dramatically simplify the proceedings if Northland won and the whole case could be snapped shut at once.

Michael Neubert and Gretchen Randall, attorneys for the property manager Hotchkiss.

Lager did bring up one sticking point.

Along with Northland, two management companies are named as defendants responsible for the complex’s condition. But those companies weren’t in charge at the same time. When the William M. Hotchkiss Company took over from DeMarco Management Corporation in 2015, at least 20 residents included in the proposed class had already moved out.

“We’re all lumped together. We didn’t purchase the property, didn’t have a grand plan for its redevelopment. So much that’s alleged, we didn’t have any role in,” said Michael Neubert, Hotchkiss’s lawyer. “It’s very individualized,”

Judge Lager said that breaking up tenants into subclasses could make it too complicated, but the alternative of filling her docket with hundreds of near-repeat cases doen’t seem much simpler.

“Do you have another three to four years to do one case after another?” she asked.

Lager didn’t issue a ruling on whether she’d certify the class. She said she wantsd to give Rosen a chance to consider tweaking his charges. The parties are all scheduled to return to court for a status conference on Sept. 17.

Paul Bass Photo

Church Street South, as pre-demolition work begins in May.

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Judge Weighs Class Action Argument

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