Here is the third and final installment of my insights from the recent ABA conference.  

Class Action Trials:  There was a very interesting panel discussion on class action trials with some lawyers and a judge who have tried class actions.  The panel included Andrew McGuiness, Judge Weinstein of the Eastern District of New York, James Donato, David Sanford, Ned Searby and Thomas Sobol. Here are my takeaways from this: 

  • From the defendant’s perspective, a big concern at trial is often addressing the potential preconception that jurors may have that because so many people are in the class, it must have some merit.  The defense panelists suggested starting with voir dire to educate people regarding what a class action is.  There are people who have received checks in the mail for tiny sums as a result of a class action and will recognize that some of these cases can have little value.  Judge Weinstein suggested that he probably would allow some attorney voir dire in a class action trial. 
  • Another big issue identified by the panelists is the extent to which the named plaintiffs will be part of the trial.  The plaintiffs’ trial strategy is typically to keep the focus entirely on the defendant’s conduct.  They often argue that because a class has been certified, the class should be treated like a corporate entity, and the named plaintiffs should not have relevant individual issues.  Although it is a challenge for them, they often call adverse defense witnesses as their lead witnesses at trial.  They need to call the named plaintiffs, but they often try to keep their testimony as short as possible.  The defense lawyers on the panel offered different viewpoints on how to handle the named plaintiffs.  One of them suggested that there is often little cross-examination that is appropriate, and the defense strategy should really focus on the details of the company’s practices and convincing the jury that the defendant acted appropriately.  Another defense panelist suggested that a long cross-examination of the named plaintiffs, to the extent possible, will be helpful to try to make a record for decertification or an appeal of the certification decision, and to demonstrate the lack of involvement that the named plaintiffs have in the class action process. 
  • Another key issue is whether any absent class members will testify and, if so, how they will be selected.  Often this arises in disputes over whether absent class members will be deposed because if they are not deposed it is unlikely the court will allow them to testify at trial.  Judge Weinstein suggested that in some cases interrogatories to absent class members may be more appropriate but he might allow both sides to select some absent class members to be deposed and to testify at trial. 
  • Another important question is whether the jury will decide the class issues or the individual issues first (a chicken and egg type of question).  If not all the named plaintiffs are allowed to testify, that tends to answer the question as the jury will not be able to decide all of the individual issues first.

The new Consumer Financial Protection Bureau (CFPB):  This new federal bureau was established by the Dodd-Frank Act and will have some regulatory oversight in areas that impact class actions.  The CFPB is currently operating without a director because the Senate has not acted on President Obama’s nomination of Richard Cordray due to a Republican filibuster.  David Gossett of the CFPB spoke at the ABA conference.  He said the bureau is interested in receiving notices of proposed class action settlements, although it is not expressly required by the Class Action Fairness Act.  The CFPB has the statutory authority to consider the propriety of and potentially ban mandatory arbitration clauses in certain types of consumer contracts, or impose conditions or limitations on them by regulation.  The bureau first has to conduct a study on arbitration, and it will not make any determination until after the study is completed.  It appears that formal action cannot be taken until a director of the bureau is confirmed.  If the CFPB issues regulations on arbitration clauses, an interesting question will arise as to whether those regulations will govern insurance contracts, given the McCarran-Ferguson Act’s preference for state regulation of insurance.

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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.