Whenever the Supreme Court grants certiorari in a case, that is broadcast broadly to the legal community and those who follow the Court know about it within hours.  But when courts of appeals grant permission to appeal an important issue under the Class Action Fairness Act or Fed. R. Civ. P. 23(f), often few people find out about it, other than the parties to the case, until a decision comes down.  These decisions can have very important implications.  With CAFA cases, given how quickly they move forward under CAFA’s 60-day timeframe for decisions to be issued, there is little time for timely amicus briefs to be filed.  So I thought it would be helpful to take a look at what cases are currently pending on which review has been granted.  Here is a summary of pending cases I found where review has been granted (without attempting to predict where a circuit might grant review and deciding the merits at the same time, which has happened several times in the Seventh Circuit):


South Carolina v. AU Optronics Corp., No. 11-254 (4th Cir.) and South Carolina v. LG Display Co., No. 11-255 (4th Cir.):  These cases involve whether a lawsuit filed by a state attorney general qualifies as a “mass action” under CAFA and issues regarding minimal diversity under CAFA where a state is a plaintiff.  See South Carolina v. AU Optronics Corp., 2011 U.S. Dist. LEXIS 104213 (D.S.C. Sept. 14, 2011); South Carolina v. LG Display Co., 2011 U.S. Dist. LEXIS 104216 (D.S.C. Sept. 14, 2011).  The Fourth Circuit has not formally acted on the petitions for permission to appeal but has ordered merits briefing, scheduled to be completed by the end of February, and indicated that it will set the cases for oral argument.  This procedure will delay triggering the 60-day clock under CAFA, which does not start running until permission to appeal is granted (although query whether this is really what Congress had in mind when it established the 60-day period).

Rolwing v. Nestle Holdings, Inc., Case No. 11-3445 (8th Cir.):  This case presents the question of whether a named plaintiff in a proposed class action can avoid federal jurisdiction under CAFA by executing a stipulation, on behalf of putative class members he is not yet authorized to represent, purporting to cap the  damages of these putative class members below $5 million.  This is a very important issue under CAFA that has never been decided by any court of appeals.  Review has been granted and according to the docket, the parties have consented to an extension of time under which the court will issue a decision by February 8, 2012.

Rule 23(f)

Churchill v. Cigna Corp., Case No. 11-3887 (3d Cir.):  This case involves a district court ruling granting class certification on a purported across-the-board practice by CIGNA of denying coverage for certain kinds of treatment for autism.  For a discussion of the district court opinion, see my prior blog post.  According to the docket, briefing in this case will be completed by April 2, 2012.

Rodriguez v. National City Bank, No. 1108079 (3d Cir.):  This is an appeal from an order denying certification of a proposed settlement class in an employment discrimination case.  See Rodriguez v. National City Bank, 2011 U.S. Dist. LEXIS 101367 (E.D. Pa. Sept. 8, 2011).  The Third Circuit has requested briefing on the merits but not formally acted on the petition for permission to appeal.

Dart v. Smentek, No. 11-3261 (7th Cir.):  The Seventh Circuit granted review under Rule 23(f) “to the extent that the court will permit an appeal on the sole issue that follows: when should a district court on deciding a motion for class certification defer, based on the principles of comity, to a sister court’s ruling on a motion for certification of a similar class. See Smith v. Bayer Corp., 131 S. Ct. 2368, 2382 (2011).”  An interesting issue.  Briefing is scheduled to be completed by March 6, 2012. 

McReynolds v. Merrill Lynch, Pierce, Fenner, & Smith, Inc., No. 11-3639 (7th Cir.):  This employment discrimination case involves whether Wal-Mart v. Dukes allows certification of an “issues” class to decide liability and injunctive and declaratory relief, where individual trials would then need to be conducted on backpay awards.  See McReynolds v. Merrill Lynch, Pierce, Fenner & Smith Inc., 2011 U.S. Dist. LEXIS 115431 (N.D. Ill. Sept. 19, 2011).  The case is on an expedited schedule, with briefing to be completed by January 5, 2012 and oral argument on January 13, 2012.

Rogers v. Epson America, Inc., No. 11-57016 (9th Cir.):  This is an appeal from a denial of class certification in a products liability case involving alleged misrepresentations in the sale of computer printers.  The issues focus on whether reliance, injury and causation can be presumed and whether a lack of standing on behalf of some class members bars certification.  The Ninth Circuit has granted review and briefing is to be completed by April 2012.

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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.