Here is part two of my takeaways from the seminar.  I’ll focus here on appeals under Rule 23(f) and CAFA, the new ALI Principles of the Law of Aggregate Litigation, and federal constitutional issues in state court class actions. 

  • Rule 23(f) and CAFA Appeals:  Judge Southwick of the Fifth Circuit made some helpful suggestions here.  First, parties might want to ask the district court to explain why an appeal might be helpful, as the advisory committee notes to Rule 23(f) suggest, and analogous to what is done in § 1292(b) interlocutory appeals.  Second, he stressed (although it comes as no surprise) that the most important section of petitions seeking review is the section on why review should be granted.  The fact that an unresolved issue is likely to arise in other cases is often more important than the likelihood of an error below, although most cases where review is granted result in reversal.  Third, the 60-day deadline to issue a decision under CAFA puts pressure on the court of appeals.  One way they might deal with that would be to leave the question of whether review should be granted as an open question until after briefing and argument on the merits (since the 60-day time period does not start running until review is granted).
  • The New ALI Principles of the Law of Aggregate Litigation:  Judge Carolyn Kuhl of the California Supreme Court, who was on the ALI drafting committee, talked about the ALI’s new Principles of the Law of Aggregate Litigation.  Everyone who does class action and mass action work should study them.  The Supreme Court cited them with approval in Wal-Mart and Smith v. Bayer.  Several important areas are:  (1) the ALI opines that issues classes under 23(c)(4) are appropriate where they materially advance the resolution of cases and are superior to other alternatives, but the issue(s) must not be intertwined with other issues that would need to be litigated in individual cases; (2) the ALI recommends that Rule 23 be amended to require court approval when a putative class action is dismissed or settled before certification, and suggests that notice to the putative class might be appropriate (I think this is inappropriate and impractical; it would unnecessarily complicate resolution of frivolous class actions, and who would pay the cost of such notice?); (3) the ALI recommends that attorneys’ fees be calculated as a percentage of the actual value received by a class in a claims-made settlement, not the projected value if everyone in the class made a claim, which has been implemented in California state court (I think this is a very good idea).
  • Federal Due Process Issues in State Court Class Actions:  Paul Clement, who represented Philip Morris in its certiorari petition in Philip Morris v. Jackson (see my prior blog post on that), believes this is an issue on which certiorari will be granted in the relatively near future.  He suggested that certiorari might not have been granted in Jackson because the state appellate court did not sufficiently grapple with the due process issue and the issue may not have been postured in a way that appealed to at least four justices.  He stressed that the Court is much more interested in reviewing legal issues than correcting even outrageous errors below.  What does a defendant need to do to have a better chance of getting the Court to consider whether state court class action rules (and the application thereof) meet federal due process standards?  Clement suggested making the federal due process issue a lead or central argument to the state appellate and supreme courts.  He said the best chance will come where the state supreme court has squarely addressed the federal due process issue.   
Tags: ALI Principles, Appeals, Due Process
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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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