This third and final part of my takeaways from the DRI seminar will focus on the presentations on threshold dispositive motions in class actions, class action settlements, and responding to class actions in the press and on the Internet. 

  • Initial Dispositive Motions:  John Beisner of Skadden (where I started my career) had some good thoughts on motions to dismiss and to strike class allegations:  Motion to dismiss briefs should explain how a motion to dismiss in a putative class action relates only to the named plaintiff’s claims – new judges and those who have had few class actions may not realize that.  One thing to be careful about in deciding whether to file a motion to dismiss is whether the outcome might narrow the case to one that is more likely to be certified.  On motions to strike class allegations, one advantage defendants do not always recognize is that plaintiffs may have filed a complaint alleging an overly broad class to try to achieve the broadest tolling possible under American Pipe.  An early motion to strike that at least narrows the class will limit tolling.  Beisner said one hot issue on motions to strike is ascertainability, where the class is a failsafe class (i.e., the class is improperly defined as limited to persons to whom the defendant is liable) or a hard-to-pinpoint class (i.e., it is evident from the complaint that class members could not be even identified without individual adjudication).  I’ve seen both of these in insurance class actions.  He also suggested that, after Wal-Mart, one approach defendants may want to take in some cases is to challenge commonality on a motion to strike and save predominance for the opposition to class certification.
  • Class Action Settlements:  John Dougherty of DLA Piper highlighted several trends in class action settlements.  In assessing attorneys’ fees, more courts are looking at a percentage of the class recovery (which sometimes does not include a cy pres award) together with a cross-check based on a lodestar calculation.  In claims-made settlements, more courts are basing attorneys’ fees on the actual payout to the class instead of the gross potential settlement fund.  Some objectors are arguing that if the proposed attorneys’ fees are not proportional to the benefit to the class, the class benefit should be increased rather than attorneys’ fees being reduced.  He has not yet seen courts approving Internet-only or e-mail notice programs, but some solution is necessary where the class is so large that a mailing is prohibitively expensive. 
  • Responding to Class Actions in the Press and on the Internet:  Richard Levick of Levick Strategic Communications gave a great presentation on how unfavorable information about a company moves so quickly on the Internet today, and how companies should be prepared in advance to respond to publicized new class action filings and communications crises that may lead to litigation.  Companies should be ready to use SEO (search engine optimization) and SEM (search engine marketing, or paid advertising) to respond immediately to a crisis, so that when people type into Google seeking information about a crisis issue, they will also find positive information and explanation from the company.  He highlighted how Taco Bell did this effectively when word spread that it was using filler in its taco meat, and the plaintiffs’ bar dropped a class action lawsuit.  Joseph Suarez, in-house counsel at Procter & Gamble, also discussed, in the context of the Pampers DryMax class action litigation, how important it is for companies to engage negative voices on blogs, Twitter, etc., quickly, before incorrect information about a company’s product spreads.  He talked about how P&G effectively used senior management and pediatricians to post comments online, although in retrospect they should have moved more quickly.  P&G previously had a policy of not commenting on litigation, but more recently changed its stance.  Adam Litpak, the New York Times’ Supreme Court reporter, talked about how companies should not refuse to comment on litigation.  Instead they should come up with a sentence or two early on, and then talk further somewhat off the record, to open the line of communication with the reporter.  It’s much easier for reporters to write negative things about a company and take the plaintiffs’ attorneys’ view when the company will not talk to them or allow its lawyers to do so. 
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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.