I recommend a recent post by Russell Jackson on his Consumer Class Actions and Mass Torts Blog.  He interviews Rob Herrington about a book he recently published on class action defense strategy, which is targeted for business leaders.  I’ve bought the book and will offer my thoughts tailored to insurance class actions on my blog after I find the time to read it.  Some of you may also be interested in reading it.

Here are a few initial thoughts that occurred to me based on Russell’s interview.  The interview comments that:

Too often, however, business leaders are brought into the discussion too late – after a class has been certified or just before a key deposition.   At that point, it usually is too late; executives face a Hobson’s choice of paying millions to settle what often seem like dubious cases or risking trial, where exposure may be in hundreds of millions or even billions of dollars.

I don’t see this factual scenario too often in insurance class actions, the business people tend to get involved quite early when this kind of lawsuit is filed.  But, as the interview also notes, by the time suit is filed, it may be too late to take any business steps to reduce exposure, at least in that case.  The best way to reduce exposure is to identify issues that might give rise to class action exposure well before any suits are filed and take steps to mitigate the exposure.  That’s never easy to do, and it looks like Rob Herrington did some research on this and his book offers some insights on how to do that.  I look forward to reading about that.

Another interesting comment in the interview was about potential legal reforms pertaining to class actions.  Herrington suggested:

First, impose a discovery stay and a heightened pleading standard for putative class actions, similar to the reforms instituted through the Private Securities Litigation Reform Act (PSLRA).  In too many cases, plaintiffs’ lawyers use discovery, particularly the enormous costs of e-discovery, to put pressure on defendants to settle.  There is no reason to permit plaintiffs to wield that type of weapon until the court is satisfied that the complaint states a cause of action based on facts, rather than speculation and innuendo.  Second, permit an immediate appeal of orders granting class certification (rather than just those denying) and permit more robust review by appellate courts.   . . . Finally, implement a system that requires plaintiffs to pay for discovery costs up and until the point where they can establish, through evidence, a prima facie case of liability.

I’m not sure we don’t already have both of these as a practical matter in substantial part, at least in federal courts.  My reading of the Supreme Court’s decisions in Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly is that there is a heightened pleading standard for complex cases, including class actions, and also the Court says discovery should be stayed pending resolution of a motion to dismiss or a motion to strike the class allegations.  Most federal district courts seem to agree with that, although not uniformly.   Rule 23(f) provides for immediate appeals from decisions granting class certification in federal court, although review is discretionary.  Most state courts have such interlocutory appeals as well.  So I think we’re pretty far along towards achieving items (1) and (2).  Other than mandating an absolute stay as with the PSLRA I’m not sure how much more could be done in federal court.  As to the third suggestion, that is such a major change that it seems like a longshot to achieve.  Another approach might be to require plaintiffs’ attorneys to pay some portion of the defense costs if class certification is denied.

As an aside, the ABA is currently working on its new Blawg100 list of top law blogs, so for any readers of my blog who think there are blogs worthy of inclusion on that list, such as Russell’s or even mine, feel free to submit the ABA’s electronic nomination form.


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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.