I recently attended the ABA’s 2011 National Institute on Class Actions.  I will try to highlight here what I saw as key points that either I had not heard before or provided an interesting new twist on an important issue.  I’ll split this up into several posts because there is a fair amount to discuss. 

Prof. Jack Coffee of Columbia Law School (who taught me when I was there) has spoken at this conference every year, providing an annual review of key developments in class action law.  He  focused on the impact of the three Supreme Court cases this year.  Here is what I saw of particular interest: 

  • Prof. Coffee predicted that we will see an increase in injunctive-only class actions under Rule 23(b)(2), with plaintiffs lawyers seeking attorneys’ fees for winning an injunction.  He noted that settling these cases can raise serious conflicts of interest because the fee award may come at the price of a reduced recovery to the class.  It is also unclear whether, after an injunctive-only class action goes to final judgment, the class members can still sue separately for damages – Rule 23(b)(2) does not provide for any opt out right, and claim splitting rules might apply.  There may be questions about whether class counsel can provide adequate representation if, in this type of case, the class members will lose their right to seek damages.  In insurance class actions, I don’t see this as a major area of likely exposure for insurers because most insurance class actions are really seeking damages and any injunctive relief is really a request for damages in disguise.  The Seventh Circuit’s opinion in Kartman v. State Farm (see my prior blog post) explains this.  But there may be some circumstances where injunctive relief can be sought in an insurance case without it being a request for damages in disguise, if the injunction does not relate to claim adjustments or premium calculation.
  • Prof. Coffee suggested that, in response to Wal-Mart v. Dukes’s holding that defendants must have the opportunity to prove their individualized affirmative defenses, plaintiffs’ attorneys may use three tactics.  First, they may try to use Iqbal and Twombly to challenge affirmative defenses that are not pled with particularity.  It is not clear that these decisions apply to affirmative defenses, and in my mind a defendant in a class action cannot be expected to investigate, at the time of filing its answer, all of the putative class members’ claims to be able to plead individualized defenses with particularity — that is completely impractical and courts should recognize that.  Second, Prof. Coffee suggested that plaintiffs may seek only partial certification on a general liability issue, leaving the affirmative defenses to be resolved in a separate individual lawsuit after adjudication of the class action (he cited Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. 2006) as an example of this approach).  I think the ALI Principles of Aggregate Litigation, if followed with respect to partial certification, will make partial certification more challenging for plaintiffs (see my prior blog post on this).  Where the common issues on which certification is sought are intertwined with the individual issues that are the subject of the affirmative defenses, the ALI Principles would counsel against certification.  Third, Prof. Coffee suggested that in a 23(b)(2) injunctive case, the defendants will not have a Seventh Amendment right to a jury trial on equitable relief claims, and thus affirmative defenses could be assigned to a magistrate for individual hearings.  Whether that is practical, of course, depends on the size of the case.
  • In discussing Smith v. Bayer Corp. (which held that the Anti-Injunction Act barred a federal court from enjoining a state court class action after denial of certification in federal court on the same issue), Prof. Coffee noted that there is an open question about whether a federal court can enjoin a state case while the federal court decides whether to approve a proposed class action settlement.  He noted that it is unclear whether the federal court has jurisdiction over absent class members or opt outs in this context, and that this is an issue the Supreme Court may need to take up.  In my mind, if an injunction were not allowed this would create some significant practical problems – the federal court settlement requires significant time to provide notice and conduct the hearing, and if the state court judge refuses to stay the state case and pushes it towards certification that creates a race between the federal and state systems (and a waste of resources in one of them).  Class action notice is also expensive, and defendants may be unwilling to incur that cost while continuing to be subjected to state court litigation.        
  • With respect to class action settlements, Prof. Coffee said we should all keep our eyes out for the Third Circuit’s forthcoming en banc opinion in Sullivan v. DB Investments, Inc.  This decision is expected to address the propriety of a nationwide settlement on state law claims in the post-Wal-Mart era.  It potentially could have a major impact on class action settlements going forward.


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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.