The DRI Class Action Seminar I attended last week provided a wealth of insights.  It was great to meet some readers of this blog there.  On the blog I will highlight what I saw as key takeaways and their specific application to the insurance industry.  In this first part, I’ll discuss some further insights on the three Supreme Court cases from this term, and the subject of coordination of litigation and regulatory inquiries. 

  • Wal-Mart v. Dukes (see my prior blog post):  Ted Boutrous, who argued Wal-Mart, stressed the importance of the Court’s unanimous rejection of “trial by formula,” where the court rejected the use of statistical modeling to prove classwide damages.  The Rules Enabling Act bars the use of Rule 23 to alter substantive rights.   I think it is key for insurers to focus on what defenses they would have in individual cases and demonstrate them with examples from the putative class.  Boutrous predicted we will see more efforts from plaintiffs to stay in state court, and more mass joinders not brought as class actions but with similar exposure.  He said careful attention also should be paid to how Wal-Mart will impact approval of class settlements, which will need to present at least one common issue satisfying the new commonality requirement.  It’s also good to see that at least two state courts (in Florida and Michigan) have followed Wal-Mart.  See Tire Kingdom, Inc. v. Dishkin, 2011 Fla. App. LEXIS 10550, at *22 (Fla. 3d Dist. Ct. App. July 6, 2011) (following Wal-Mart on commonality); Henry v. Dow Chemical Co., Case No. 03-47775, slip op. (Mich. Cir. Ct., Saginaw County) (refusing to re-certify class).
  • Smith v. Bayer Corp. (see my prior blog post):  Phil Beck, who argued Smith, said the problem of serial relitigation of class certification likely will have to be solved by Congress.  He suggested affirmatively arguing stare decisis in a strong way once courts have repeatedly denied class certification in favor of the defendant on the same issue.  Where parallel cases are brought in state and federal court, the defendant might try to implead the state court named plaintiffs into the federal case.  I asked about a declaratory judgment action by the defendant against a putative class, seeking final resolution of the class certification issue.  He thought that might work but of course has significant risks.
  • AT&T v. Concepcion (see my prior blog post): Both Andy Pincus, who argued Concepcion, and Neal Berinhout, lead in-house counsel on the case, spoke at the seminar.  They talked about how AT&T designed its consumer-friendly arbitration provision because it was tired of the burden of class actions brought by the plaintiffs’ bar that had little merit but large defense costs, and it wanted to make its customers happy if they had legitimate disputes, and resolve them quickly.  There have been relatively few arbitrations because of AT&T’s self-imposed incentive to settle disputes (if they don’t, they can face an arbitration with a significant minimum damage award and double attorneys’ fees).  Insurers often have similar motivations to keep their customers happy and resolve disputes quickly, and may want to pursue this, but the regulatory environment and applicable insurance law is more complex – some states limit or prohibit arbitration provisions in insurance policies in some contexts, and there are issues regarding the interplay of the Federal Arbitration Act and the McCarran-Ferguson Act.  See Am. Bankers Ins. Co. v. Inman, 436 F.3d 490, 494 (5th Cir. 2006); McKnight v. Chicago Title Ins. Co., 358 F.3d 854, 858 (11th Cir. 2004).  To the extent insurers try to implement this, AT&T’s provision is certainly a model that comes with Supreme Court approval, although an insurer may not need to go quite as far as the AT&T provision does in being consumer-friendly, and disputes over insurance claims differ significantly from disputes AT&T has with consumers.  While there have been Congressional efforts started to overturn the Concepcion decision, they do not seem to be getting any traction yet, but should be monitored closely.
  • Coordination of litigation and regulatory inquiries:  Amanda Perez, in-house counsel at Pfizer, talked about how she has addressed situations where Pfizer is faced with an issue that leads to a regulatory inquiry and multiple fronts of litigation at the same time.  Insurers are sometimes faced with analogous circumstances where departments of insurance are making inquiries at the same time as class actions and other litigation is pending.  She made good points about how critical it is to think about the endgame for the entire issue upfront, and how discovery should be coordinated across multiple suits where possible, so that plaintiffs’ lawyers in multiple suits get only one deposition of company personnel.

 

Tags: AT&T v. Concepcion, Smith v. Bayer, Supreme Court, Wal-Mart v. Dukes
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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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