Following Wal-Mart, I expect we will see more attempts by plaintiffs to try to certify issues classes under Rule 23(c)(4), which provides that “[w]hen appropriate, an action may be brought or maintained as a class action with respect to particular issues.”  Courts have disagreed about when issues classes may be certified under this provision.  The Third Circuit recently addressed this in Gates v. Rohm & Haas Co., 2011 U.S. App. LEXIS 17756 (3d Cir. Aug. 25, 2011), and adopted the ALI’s recently-promulgated Principles of Aggregate Litigation on this point.  I expect this decision will be quite helpful to insurers and other defendants in defending against attempts to certify issues classes under Rule 23(c)(4).

Gates was a mass tort case in which the plaintiffs alleged that chemical companies dumped wastewater containing a carcinogen into the ground near their homes.  They sought certification of a class seeking medical monitoring and also an issues class seeking a determination of liability only, with damages to be determined separately in individual suits.  Id. at *2-3.

With respect to the proposed issues class, the Third Circuit noted that there is a circuit split on the question of whether an issues class can be certified if there is a lack of predominance for the class as a whole (where certification is sought under Rule 23(b)(3)).  Id. at *45-46.  The court chose not to follow either side of the circuit split, but rather concluded that the ALI’s recently-adopted Principles of Aggregate Litigation provided the best guideline for district courts in deciding whether to certify an issues class:

In light of the adoption of the Final Draft of the Principles of Aggregate Litigation, when deciding whether or not to certify an issues class, the trial court should consider: the type of claim(s) and issue(s) in question; the overall complexity of the case; the efficiencies to be gained by granting partial certification in light of realistic procedural alternatives; the substantive law underlying the claim(s), including any choice-of-law questions it may present and whether the substantive law separates the issue(s) from other issues concerning liability or remedy; the impact partial certification will have on the constitutional and statutory rights of both the class members and the defendant(s); the potential preclusive effect or lack thereof that resolution of the proposed issue class will have; the repercussions certification of an issue(s) class will have on the effectiveness and fairness of resolution of remaining issues; the impact individual proceedings may have upon one another, including whether remedies are indivisible such that granting or not granting relief to any claimant as a practical matter determines the claims of others; and the kind of evidence presented on the issue(s) certified and potentially presented on the remaining issues, including the risk subsequent triers of fact will need to reexamine evidence and findings from resolution of the common issue(s).

Id. at *47-48 (citing Principles of the Law of Aggregate Litigation §§ 2.02-2.05 (2010)).  The Third Circuit affirmed the denial of certification, focusing on the lack of severability between the common issue and the individual issues.  Id. at *49.

The court also rejected certification of the proposed class seeking medical monitoring under Rule 23(b)(2), relying on the Supreme Court’s recent decision in Wal-Mart.  The court rejected plaintiffs’ expert testimony concerning putative class members’ exposure to the chemical because it was based on “[a]verages or community-wide estimations [that] would not be probative of any individual’s claim because any one class member may have an exposure level well above or below the average.”  Id. at *26.

With respect to issues classes, I expect the approach adopted by the Third Circuit here will be favorable for defendants in many circumstances, particularly in comparison to those circuits that have, in some circumstances, allowed certification of issues classes without a showing of predominance as to the case as a whole.  As in Gates, a key issue in these cases is likely to be whether the individual issues are intertwined with or separable from the common issues sought to be litigated in the class action.  In many insurance class actions where predominance is not satisfied, common issues are intertwined with individual issues.

I also recommend studying the ALI Principles of Aggregate Litigation.  They are gaining traction with judges and we are likely to see them cropping up more and more in class certification opinions and other decisions on management of class actions.

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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.