I recently attended the Federation of Defense and Corporate Counsel’s 2011 Insurance Industry Institute.  Insurance class actions were not a significant focus of the program, but there were a few points worthy of mention:

  • The Insurance Regulatory Landscape: There was a panel discussion on the changing regulatory landscape impacting the industry.  The panelists included representatives of the insurance departments in New York, Missouri and DC, as well as representatives of AIA and PCIAA.  The focus was on the new Federal Insurance Office and whether federal regulation of insurance will expand in the coming years.  The consensus was that this will be a slow, gradual process.  I asked, if insurers were to move towards increased use of arbitration following AT&T v. Concepcion, how the panel thought regulators might view that.  It appeared that this was not an issue they had given much thought to yet.  One panelist suggested that some insurance departments may not be comfortable with insurers forcing individuals into arbitrations.  Another panelist noted that arbitration may not be what insurers want given the potential for increased cost and less ability to predict outcomes.
  • Microinsurance:  There was an interesting discussion on microinsurance, including an effort by SwissRe to sell low-cost, small-value agricultural insurance to low income consumers in Africa.  Companies may see this as a way to do some good for impoverished people as well as develop and grow a new insurance market.  (For more on microinsurance, see a recent Oxfam press release as well as the Microinsurance Centre.)  It seems clear that there is a huge potential untapped market for selling insurance to individuals in underdeveloped countries, and this may help people improve their livelihoods, but there are various regulatory and cultural obstacles to selling microinsurance.  The countries where these products can be sold can have unstable governments and difficult regulatory systems, as well as consumers who have a general distrust for insurance companies.  From the litigation perspective, it seems critical to understand the legal system in the country where an insurer is contemplating selling these policies.  Given that the amounts at stake on claims necessarily would be small, an insurer likely would have serious litigation risk only if the courts have a class action mechanism, or bad faith law that could allow for recoveries in lawsuits much larger than the amount of insurance.
  • Attorney-Client Privilege Outside the U.S.:  David Steiger gave a very interesting presentation about how the law on the attorney-client privilege varies widely outside of the United States.  Many other countries do not have a privilege as robust as ours, particularly with respect to recognizing a privilege between in-house counsel and businesspersons at a company.  Some countries also may not recognize any cross-border privilege between businesspersons in one jurisdiction and in-house or outside lawyers from other countries who are not licensed in the applicable jurisdiction.  For insurers with global operations, this can potentially create significant issues where, for example, U.S.-based and U.S.-admitted lawyers are managing issues or litigation overseas.  Steiger suggested that this might also create issues if electronic files pertinent to U.S. matters are being stored overseas due to outsourcing.    
  • Data Breach Class Actions:  A panel discussion on privacy laws and cyber-related coverages for data breaches highlighted in my mind how that is a significant new area of class action exposure for insurers, in two different ways.  First, insurers that suffer a loss of electronic personal data regarding their insureds could face class actions brought against them, although I am not aware of any significant ones to date.  Second, insurers that provide insurance coverage for data breaches could find themselves defending a significant number of class actions brought against their insureds.  These are cases in which, due to the nature of the event, class certification seems potentially more likely, although there may be statutory defenses as well as defenses based on a lack of injury, or whether there was injury may depend on a case-by-case analysis.  This is an area in which insurers (and their insureds) may be able to take proactive steps to reduce class action exposure by ensuring that they are up to date on the law in all applicable jurisdictions and ready to respond swiftly to these events when they occur.  It also may be worth thinking about what steps can be taken to reduce the likelihood of class certification in the event that this type of class action is brought.  For more on this, see a recent piece on the Lexblog Network and the blog posts cited therein discussing a recent First Circuit decision.
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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.