I found very interesting a recent post by Russell Jackson on his Consumer Class Actions and Mass Torts Blog, discussing a proposed settlement in In re Dry Max Pampers Litigation, which includes a ban on future class actions.  This MDL involved claims that Dry Max diapers, a relatively new product introduced by Pampers, purportedly caused diaper rash, although CPSC and Health Canada studies failed to demonstrate any connection between these diapers and diaper rash.  The proposed settlement involves equitable relief – providing certain educational information to consumers, and reinstating a money-back guarantee – along with cy pres relief (funding for certain medical research on infant skin health).  The class members would give up their right to bring equitable claims (including incidental monetary damages that might be awarded on equitable claims), but would retain their right to sue for personal injuries and actual damages. 

Most significantly, the class members would give up their right to bring future class action lawsuits on the issue presented by this case.  Whether a denial of class certification by a federal court can bar future class actions in state courts is before the Supreme Court in the Smith v. Bayer Corp. case, which I previously posted about.  This seems to be an effort to ensure that, regardless of the outcome of Smith v. Bayer Corp., class members in this case, assuming the settlement is approved, will not be able to bring new class actions, since they will get notice and expressly give up that right.  I’m not sure I agree with Russell that Smith v. Bayer Corp. might make this settlement unworkable, but you never know what the Supreme Court might say.  I agree that a ruling for the plaintiffs in Wal-mart v. Dukes could throw into question the aspect of this settlement that involves the class giving up certain rights to equitable claims for monetary relief.  With the Supreme Court term ending soon, we’ll know where those things stand within a few weeks. 

Also very interesting here is the proposal for notice to be entirely Internet based (a press release and website).  Often one of the major obstacles to settling “nuisance” class actions is that notice costs may outstrip the case’s settlement value.  If courts approve this form of notice, it will make it easier for parties to settle these kinds of cases.

Insurance companies may well be able to take advantage of this kind of a settlement if courts approve it.  Insurers are often faced with putative class actions on which a denial of class certification is very likely, but plaintiffs’ attorneys tend to bring numerous putative class actions on the very same issue.  This type of settlement could be a potential solution to the cost of repeated class action litigation on the same issue – individual insureds would not give up their right to sue for damages individually, but they would give up the right to bring a class action, in exchange for some equitable and/or cy pres relief.  Another solution to this type of problem might be a favorable result in Smith v. Bayer Corp., depending on how that case comes down and how the opinion is written. 

Email this postTweet this postLike this postShare this post on LinkedIn
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.