This is a guest post by Seth Schmeeckle, a partner at Lugenbuhl, Wheaton, Peck, Rankin & Hubbard in New Orleans and Baton Rouge, Louisiana.  Seth and I have worked together on Hurricane Katrina and Rita litigation for the last six years.  Seth and his partner, Ralph Hubbard, ran the defense group in the Eastern District of Louisiana for the flood exclusion-related class actions and the Louisiana Attorney General’s Road Home litigation.  He is also a great resource if you need to know where to find the best gumbo (or other fantastic food of various varieties) in New Orleans.

In Price v. Martin, — So. 3d —, 2011 WL 6034519 (La. 12/6/11), a decision that could dramatically alter the landscape of class action litigation in Louisiana, the Louisiana Supreme Court recently adopted the “heightened commonality” requirement announced by the U.S. Supreme Court in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), requiring that plaintiffs present “significant proof” that common questions of law or fact exist before a district court may certify a putative class.  While Price’s ultimate effect remains to be seen, at a minimum it provides lower courts with a new and powerful mechanism for denying certification to those purported classes where the plaintiffs advance only superficial or unsupported theories of common liability or causation.

In Price, a group of landowners living in the vicinity of a wood-treating facility brought a putative class action against past and present owners of that facility, alleging that those owners had engaged in environmentally-unsound practices that caused hazardous chemicals to be released into the surrounding environment.  Id. at *1.  Plaintiffs sought to define the class as essentially all persons or entities that had been present in the vicinity of the facility since 1940.  Id. at *2.  Although the district court initially certified the class and the appellate court later affirmed, the Louisiana Supreme Court reversed, relying on the U.S. Supreme Court’s recent decision in Wal-Mart to hold that the plaintiffs had not satisfied the requirements for class certification. 

The Price court, citing Wal-Mart for the proposition that the rules for class action certification do not set forth a “mere pleading standard,” reversed on the grounds that the plaintiffs had not offered “significant proof” that the “commonality” requirement was satisfied.  The plaintiffs had argued the requirement was satisfied by the existence of a common factual issue, namely, whether defendants’ chemical emissions had caused damage to the residences surrounding the facility.  Id. at *6.  Testing the validity of this assertion, the court analyzed the specific proof plaintiffs offered in support, finding that none of it was sufficient to establish the existence of a common question whose truth or falsity would resolve an issue that was central to the validity of each of plaintiffs’ claims.  Id. at *9.  Rather, the court found that plaintiffs’ proffered evidence belied the existence of a “myriad of property-specific facts” that would need to be resolved in order to determine defendants’ liability to individual plaintiffs.  Id. at *9-10.  Because the court’s “rigorous analysis” revealed an absence of “significant proof” of a common question, the court held the commonality requirement found in La. C.C.P. art. 591 was not satisfied and that the lower court had committed manifest error in granting certification.  Id. at *12.  On this same basis, the court also held that the predominance and superiority requirements found in La. C.C.P art. 591(b)(3) were necessarily not satisfied.  Id.

By denying certification while at the same time embracing Wal-Mart’s “heightened commonality” requirement, the Louisiana Supreme Court appears to be sending a strong message to lower courts that the practice of certifying class actions on the basis of a subcutaneous common question of law or fact is over.  Not only is the court providing a new tool for district courts to use to deny certification; it also appears to be encouraging the lower courts to employ this tool to minimize the number of class actions that are certified.   Assuming the lower courts follow suit – which remains to be seen – class action litigation in Louisiana state courts could be resolved at an earlier stage in the proceedings, much in the same way the U.S. Supreme Court’s decisions in Twombly and Iqbal led to courts becoming more willing to resolve dispositive issues by way of motions  under Fed. R. Civ. P. 12.

On its surface, it appears difficult to reconcile the Louisiana Supreme Court’s analysis on class certification in its Price decision with another recent of its class action decisions in Oubre v. Louisiana Citizens Fair Plan, No. 2011-C-0097, 2011 La. LEXIS 3014 (La. Dec. 16, 2011) (see Wystan’s recent blog post about Oubre).  In Oubre, the Louisiana Supreme Court reinstated a $92 million summary judgment in favor of the class of policyholders against their insurer for its failure to timely initiate the adjustment of Hurricane Katrina losses in compliance with Louisiana law.  But it must be remembered that the issue before the court in Oubre was not whether the class should have been certified.  Rather, the issue concerned the application of Louisiana’s bad faith statutes concerning timely initiation of loss adjustment.  Several years prior, the Louisiana Supreme Court decided to deny Louisiana Citizens’ writ application concerning the appropriateness of the lower courts’ decision to certify the class.  See Oubre v. Louisiana Citizens Fair Plan, 964 So. 2d 363 (La. 2007).  One has to wonder if the Louisiana Supreme Court would have granted the writ application at that time if it had the Wal-Mart decision available to it.

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.