Earlier this week I attended the ABA’s national webinar entitled “The Future of Class Actions,” part of its Premier Speaker Series.  The panelists were Paul Bland of Public Justice, Mark Perry of Gibson Dunn and Judge Lee Rosenthal of the Southern District of Texas.  Here is what I found most interesting: 

  • Paul Bland, the plaintiffs-side member of the panel, argued that Wal-Mart, as an employment case, is distinguishable in many consumer class action contexts.  His example was where cases are based on identical contract documents and a common practice by the defendant.  That almost describes to a tee what plaintiffs typically argue in seeking to certify insurance class actions, which suggests we may see more focus on insurance.  But when you dig into the details, frequently the policy language for the proposed class is not identical and the “common practice” is really nothing more than a guideline with plenty of case-by-case exceptions to it, making the case much more analogous to Wal-Mart. 
  • There seemed to be a general consensus among the panelists that, post-Wal-Mart, more evidentiary hearings (essentially mini-trials) are being held on class certification in federal courts, and we are likely to see more of that.  I think that’s a good thing regardless of which side of the case you’re on, such a hearing tends to focus a busy judge more intently on the evidence on class certification.  It also gives class action lawyers more opportunities to conduct evidentiary proceedings, given the very few class actions that go to trial. 
  • Mark Perry made an interesting point about a sometimes overlooked part of the class action rule requiring that courts certifying a class “must define the class and the class claims, issues, or defenses . . . .”  Fed. R. Civ. P. 23(c)(1)(B) (emphasis added).  He made the point that under this rule and in light of Wal-Mart, district courts should be carefully examining each element of the plaintiffs’ causes of action and each defense, and determining whether they can be tried on a classwide basis.  I thought that was a great point.  Some decisions fall into the trap of looking at the issues in the case too broadly without digging into the details of each cause of action and each defense.  The need for individual proof of defenses can be critical in defending against class certification. 
  • Judge Rosenthal pointed out that there is a significant open question after Wal-Mart as to whether a Rule 23(b)(2) class can recover an award of relatively small penalties on each class member’s claim, which, when aggregated, amount to a very large penalty that can potentially cripple a defendant, particularly a smaller company.  This is an issue the insurance industry needs to be paying very close attention to because insurance claim-handling statutes sometimes provide for these types of penalties.  The Louisiana Supreme Court’s recent decision in Oubre v. Louisiana Citizens Fair Plan, No. 2011-C-0097, 2011 La. LEXIS 3014 (La. Dec. 16, 2011) is a good example of how this type of aggregation of small penalties can result in a huge potential exposure for an insurer (see my recent blog post on Oubre for more).  The latest word on Oubre is that the Louisiana Supreme Court denied rehearing and that Louisiana Citizens intends to petition for certiorari in the U.S. Supreme Court, as recently reported on Property Casualty 360.  I wouldn’t hold your breath for that petition to be granted, but you never know.   
  • On AT&T v. Concepcion, Paul Bland took the position that if Concepcion results in enforcement of arbitration provisions barring class action arbitrations even in circumstances where it is not financially viable for an individual to pursue an arbitration (as the Eleventh Circuit has held), then consumer class actions will disappear except in circumstances where there is no contract between the putative class members and the defendant.  Mark Perry pointed out that the Consumer Financial Protection Bureau will have the power to bar the use of arbitration clauses by lenders within its jurisdiction, and that the NLRB has recently ruled that it is an unfair labor practice for employers to ban class arbitrations (this is on appeal).  They didn’t mention insurance, but, as I’ve noted here before, that is another area where state regulators and state legislatures have power to regulate the use of arbitration provisions (see my August 22, 2011 and December 14, 2011 blog posts for more on this).  One risk I see here is that if the insurance industry does not pursue greater use of arbitration post-Concepcion and most other industries do, that could make the insurance industry a more prominent target of the plaintiffs’ class action bar. 
  • There was an interesting discussion about the Fifth Circuit’s opinion in In re Monumental Life Ins. Co., 365 F.3d 408 (5th Cir. 2004), a case involving allegations of racial discrimination in the sale and administration of low-value industrial life insurance policies.  In a 2-1 decision, the majority reversed a denial of class certification, holding that damages potentially could be obtained under Rule 23(b)(2).  The majority accepted the plaintiffs’ argument that damages, although individualized, could be calculated in an across-the-board way through the use of the insurer’s rating practices and data, and thus were proper under Rule 23(b)(2).  The court also suggested that, although notice and opt out procedures are not required under Rule 23(b)(2), they can be used in (b)(2) cases, and might be appropriate in that case.  Judge Rosenthal suggested that there are open questions as to whether these holdings survive Wal-Mart. 
Tags: ABA, Concepcion, Wal-Mart v. Dukes
Print:
Email this postTweet this postLike this postShare this post on LinkedIn
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.

Read more about Wystan Ackerman
Show more Show less
Related Posts
Supreme Court to Decide Whether Class Action Arbitration Is Allowed Where Arbitration Clause Is Silent Regarding Availability of Class Proceedings
May 8, 2018
Oral Argument in Epic Systems Corp. v. Lewis: Class Action Waivers in Employment Agreements
October 3, 2017
Supreme Court to Hear Class Action Cases Involving Class Action Waivers and Tolling of Statutes of Limitations
January 18, 2017