One tactic plaintiffs’ attorneys have attempted to use in trying to avoid federal jurisdiction under the Class Action Fairness Act (CAFA) is to split up what would ordinarily be one class action into multiple cases, each of them structured to try to achieve an amount in controversy below $5 million.  An important issue that federal courts are addressing is whether the amount in controversy in multiple similar class actions can be aggregated to determine whether CAFA jurisdiction exists.

In Marple v. T-Mobile Central LLC, the Eighth Circuit recently issued a per curiam decision refusing to aggregate multiple suits in determining the amount in controversy, but the case appears to be limited to its unusual facts.  T-Mobile had filed ten separate lawsuits against municipalities in Missouri, seeking to recover tax payments it made under protest.  Plaintiffs, customers of T-Mobile, then filed ten separate class action lawsuits, claiming that T-Mobile improperly passed on the taxes to its customers, and seeking to recoup any monies obtained by T-Mobile in each of its lawsuits against the municipalities.  The class actions filed against T-Mobile mirrored the declaratory judgment lawsuits it brought.

The Eighth Circuit noted that CAFA does not expressly address aggregation of multiple class actions to determine the amount in controversy, and it discussed the Sixth Circuit’s opinion in Freeman v. Blue Ridge Products, Inc., where the Sixth Circuit aggregated the amount in controversy in five separate class actions that appeared to be structured to avoid CAFA.  In Marple, the Eighth Circuit distinguished Freeman on the basis that “the structure of Marple’s class actions exactly mirror the underlying ten lawsuits brought by T-Mobile and are driven by T-Mobile’s own litigation decisions.  Moreover, there is no indication that Marple artificially divided the lawsuit to avoid CAFA.”  The Eighth Circuit was careful to indicate that it was not disagreeing with Freeman and only distinguishing it on the unusual facts of Marple, which may also have been why this was a per curiam decision.

While the circumstances in Marple were unique, this is a critical issue not only for insurers but all defendants in class actions, and its resolution is important for the continued viability of CAFA.  If federal courts allow plaintiffs to divide up class action lawsuits that would otherwise be over $5 million into a series of smaller suits that are under $5 million, nearly any class action can be structured in a way to avoid CAFA, and the entire purpose of CAFA is defeated.  This type of structuring is the new equivalent of fraudulent joinder and federal courts should recognize it as such. 

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Photo of Wystan Ackerman Wystan Ackerman

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you…

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you have something to say.  For those looking for my detailed law firm bio, click here.  If you want a more light-hearted and hopefully more interesting summary, read on:

People often ask about my unusual first name, Wystan.  It’s pronounced WISS-ten.  It’s not Winston.  There is no “n” in the middle.  It comes from my father’s favorite poet, W.H. (Wystan Hugh) Auden.  I’ve grown to like the fact that because my name is unusual people tend to remember it better, even if they don’t pronounce it right (and there is no need for anyone to use my last name because I’m always the only Wystan).

I grew up in Deep River, Connecticut, a small town on the west side of the Connecticut River in the south central part of the state.  I’ve always had strong interests in history, politics and baseball.  My heroes growing up were Abraham Lincoln and Wade Boggs (at that time the third baseman for the Boston Red Sox).  I think it was my early fascination with Lincoln that drove me to practice law.  I went to high school at The Williams School in New London, Connecticut, where I edited the school newspaper, played baseball, and was primarily responsible for the installation of a flag pole near the school entrance (it seemed like every other school had one but until my class raised the money and bought one at my urging, Williams had no flag pole).  As a high school senior, my interest in history and politics led me to score high enough on a test of those subjects to be chosen as one of Connecticut’s two delegates to the U.S. Senate Youth Program, which further solidified my interest in law and government.  One of my mentors at Williams was of the view that there were far too many lawyers and I should find something more useful to do, but if I really had to be a lawyer there was always room for one more.  I eventually decided to be that “one more.”  I went on to Bowdoin College, where I wrote for the Bowdoin Orient and majored in government, but took a lot of math classes because I found college math interesting and challenging.  I then went to Columbia Law School, where I was lucky enough to be selected as one of the minions who spent their time fastidiously cite-checking and Blue booking hundred-plus-page articles in the Columbia Law Review.  I also interned in the chambers of then-Judge Sonia Sotomayor when she was a relatively new judge on the Second Circuit, my only connection to someone who now has one-ninth of the last word on what constitutes the law of our land.  I graduated from Columbia in 2001, then worked at Skadden Arps in Boston before returning to Connecticut and joining Robinson+Cole, one of the largest Connecticut-based law firms.  At the end of 2008, I was elected a partner at Robinson+Cole.

I’ve worked on class actions since the start of my career at Skadden.  Being in the insurance capital of Hartford, we have a national insurance litigation practice and I was fortunate to have the opportunity to work on some prominent class actions arising from the 2004 hurricanes in Florida and later Hurricane Katrina, including cases involving the applicability of the flood exclusion, statutes known as valued policy laws, and various other issues.  My interest and experience in class actions gradually led me to focus on that area.

In Connecticut courts I’ve defended various kinds of class actions that go beyond insurance, including cases involving products liability, securities, financial services and consumer contracts.

My insurance class action practice usually takes me outside of Connecticut.  I’ve had the pleasure of working on cases in various federal and state courts and collaborating with great lawyers across the country.  While class actions are an increasingly large part of my practice, I don’t do exclusively class action work.  The rest of my practice involves litigating insurance coverage cases, often at the appellate level.  That also frequently takes me outside of Connecticut.  A highlight of my career thus far was working on Standard Fire Ins. Co. v. Knowles, the U.S. Supreme Court’s first Class Action Fairness Act case.  I was Counsel of Record for Standard Fire on the cert petition, and had the pleasure of working with Ted Boutrous on the merits briefing and oral argument.

I started this blog because writing is one of my favorite things to do and I enjoy following developments in class action law, writing about them and engaging in discussion with others who have an in interest in this area.  It’s a welcome break from day-to-day practice, keeps me current, broadens my network and results in some new business.

When I’m not at my desk or flying around the country trying to save insurance companies from the plaintiffs’ bar, or attending a conference on class actions or insurance litigation (for more on those, see the Seminars/Programs page of this blog), I often can be found playing or reading with my young daughter, helping my wife with her real estate and mortgage businesses, reading a book about history or politics, or watching the Boston Red Sox (I managed to find bleacher seats for Game 2 of the 2004 World Series when Curt Schilling pitched with the bloody sock).  When the weather is good I also love to take the ferry to Block Island, Rhode Island and ride a bike or walk the trails there. If you go, I highly recommend the Clay Head Trail.

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