Earlier this year, I posted about a Fourth Circuit decision holding that a lawsuit filed by a state attorney general purportedly as a parens patriae suit was not a “class action” under the Class Action Fairness Act (CAFA), and therefore there was no federal jurisdiction.  The Ninth Circuit has now joined the Fourth Circuit on this issue. 

In Washington State v. Chimei Innolux Corp., 2011 U.S. App. LEXIS 20083 (9th Cir. Oct. 3, 2011), attorneys general in Washington State and California brought antitrust suits alleging that the defendants engaged in price fixing in the market for thin-film transistor liquid crystal display panels.  State statutes in both jurisdictions authorized the attorneys general to file these as parens patriae cases.  CAFA defines the term “class action” as “any civil action filed under rule 23 of the Federal Rules of Civil Procedure or similar State statute or rule of judicial procedure authorizing an action to be brought by 1 or more representative persons as a class action.”  28 U.S.C. § 1332(d)(1)(B).  The Ninth Circuit held that these suits did not fall within CAFA’s definition of “class action” because “[n]either lawsuit was filed under Rule 23 of the Federal Rules of Civil Procedure or any similar state statute.”  Id. at *9.  The court further explained that “[u]nlike private litigants, the Attorneys General have statutory authority to sue in parens patriae and need not demonstrate standing through a representative injury nor obtain certification of a class in order to recover on behalf of individuals.”  Id.

The Ninth Circuit said it agreed with the Fourth Circuit’s opinion earlier this year in West Virginia ex. Rel McGraw v. CVS Pharm., Inc., 646 F.3d 169 (4th Cir. 2011) (see my prior blog post).  It distinguished the Fifth Circuit’s decision in In re Katrina Canal Breaches Litig., 524 F.3d 700 (5th Cir. 2008), a case I am involved in, on the grounds that Katrina Canal was expressly filed as a class action by the state attorney general.  The Ninth Circuit cited but did not discuss the Fifth Circuit’s opinion in Louisiana ex. rel. Caldwell v. Allstate Ins. Co., 536 F.3d 418 (5th Cir. 2008), which held that a lawsuit filed by the Louisiana attorney general purportedly as a parens patrie suit was a “mass action” subject to federal jurisdiction under CAFA.  The Ninth Circuit in Chimei Innolux, like the Fourth Circuit in CVS, did not address the potential applicability of CAFA’s mass action provision (under which only individual claims in excess of $75,000 remain in federal court).

I see these cases as having less of an impact in insurance cases because it is relatively rare for a state statute to expressly grant an attorney general a parens patriae power to sue insurance companies outside of the antitrust context.  When such suits are brought, insurers may have a strong argument that the case does not fit the test for a parens patriae case because, among other reasons, the state may not be pursuing a sovereign interest apart from private interests of individual policyholders, there may be no quasi-sovereign interest, and only a relatively small portion of the state’s population will be insureds of any particular insurer.  In addition, as I previously noted, some statutes providing an attorney general with the power to sue may fit more closely CAFA’s definition of “class action,” and provide a basis to distinguish the Fourth and Ninth Circuit decisions.   

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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.