This is the second installment of my insights from the recent ABA conference.  

Concepcion:  During the discussion of the Supreme Court’s decision in AT&T Mobility, LLC v. Concepcion, which upheld the use of arbitration clauses with class action waivers, Paul Bland of Public Justice (who filed an amicus brief in support of the plaintiffs) made some interesting points.  He suggested that the Supreme Court might rule differently in a case coming up from a state supreme court instead of a federal court of appeals, because Justice Thomas has taken the view that the Federal Arbitration Act does not apply in state court, and thus might vote with the Concepcion dissenters in a state court case.  (Although is it really the lower courts’ role to try to count how justices might vote in the Supreme Court in a yet-to-be-decided case, as opposed to following the precedent that exists?)  Bland also noted that the plaintiffs in Concepcion might have strengthened their case had they developed a factual record on the extent to which AT&T’s arbitration provision is actually used by consumers.  Bland suggested that AT&T’s provision is hardly ever used, but Andy Pincus, who argued for AT&T in Concepcion, pointed out that part of the reason for the relatively small number of arbitrations that have gone forward is that AT&T imposes a substantial incentive on itself to settle individual disputes.  Paul Bland also suggested that, in seeking to avoid application of Concepcion, plaintiffs can argue that they cannot effectively vindicate statutory rights in arbitration because, where cases involve complicated legal issues and small amounts at stake, it is not practical to pursue arbitration.  He cited the Supreme Court’s decision in Green Tree Financial Corp.-Ala. v. Randolph, 531 U.S. 79 (2000) as potentially supporting that result if the right kind of factual record is developed by the plaintiffs.  The Eleventh Circuit recently rejected an argument along these lines, however, in Cruz v. Cingular Wireless, LLC, No. 08-16080, 2011 U.S. App. LEXIS 16811 (11th Cir. Aug. 11, 2011).  The speakers agreed that the Second Circuit’s forthcoming decision in In re American Express is one to watch on this issue.  In insurance class actions, if the use of arbitration by insurers is expanded, I expect it will be difficult for plaintiffs to contend that they cannot effectively vindicate statutory rights, such as bad faith claims or other violations of insurance statutes, in individual arbitrations.  Typically the penalties available are more than adequate to provide an incentive to arbitrate.  We might see this argument made in insurance class actions involving de minimus statutory violations with small penalties, but so far the courts seem disinclined to allow this type of argument by plaintiffs as a way around Concepcion

Wal-Mart v. Dukes:  Joe Sellers, who argued for the plaintiffs in Wal-Mart v. Dukes, suggested that, with respect to the Supreme Court’s holding that “Trial by Formula” is impermissible and defendants must be allowed to prove up their affirmative defenses on an individual basis in class actions, we may see arguments by plaintiffs that this holding should be limited to Title VII and other statutory claims.  He noted that Title VII expressly provides a statutory right to assert individualized defenses.  Professor Coffee in his discussion of Dukes did not read it as potentially limited in this fashion.  Mark Perry, who was on the team representing Wal-Mart in Dukes, said this argument was unlikely to succeed because this part of the decision was unanimous and was compelled by the Rules Enabling Act, under which a procedural rule cannot change substantive law.

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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.