After Wal-Mart v. Dukes, some commentators have suggested that plaintiffs’ attorneys are likely to file more class actions seeking exclusively declaratory or injunctive relief, on the theory that it might be easier to obtain certification of those cases.  Prof. Jack Coffee of Columbia Law School has suggested this, as I noted in my October 25, 2011 blog post.  The Third Circuit recently issued an opinion on certification of injunctive relief claims under Rule 23(b)(2) in McNair v. Synapse Group, Inc., No. 11-1743, 2012 U.S. App. LEXIS 4593 (3d Cir. Mar. 6, 2012).  Andrew Trask, who pens the Class Action Countermeasures blog, has a great blog post summarizing the facts and holding of McNair and providing his analysis.  I’ll focus here on what I see as the impact of this decision for insurance cases. 

As brief background, the defendant in this case, Synapse, sells magazine subscriptions.  Subscriptions are offered at low initial rates, with automatic renewal unless cancelled.  (I’m sure you’ve seen some of these offers, I certainly have.)  The plaintiffs’ theory of liability was that the renewal notices sent in the mail were so deceptive that people would throw them out and not call to cancel their subscription if they wanted to do so.  After an initial denial of class certification, the case was re-framed to seek only injunctive relief, and certification was again denied.  The Third Circuit granted review under Rule 23(f) and affirmed. 

The Third Circuit focused solely on whether the named plaintiffs had standing to seek injunctive relief, finding that they did not because they were no longer customers of Synapse, and thus could not establish a reasonable likelihood of future harm.  Given that the named plaintiffs are now familiar with the allegedly deceptive tactics of Synapse, the court rejected their argument that they could be misled again by those tactics, and thus they did not have standing to seek injunctive relief.  The court also rejected the plaintiffs’ argument that the “capable of repetition yet evading review” doctrine would apply where there was no reasonable expectation by the named plaintiffs of being subjected to the same conduct again. 

In insurance class actions, sometimes it is the case that the named plaintiff is no longer a policyholder of the defendant.  If the named plaintiff was sufficiently upset with their insurer to file a class action, often they take their business elsewhere before suit is filed, or before it reaches the class certification stage.  This case is certainly helpful in that context in defending a class action seeking injunctive or declaratory relief, or the portion of the case that seeks such relief.  But even where the named plaintiff is still a policyholder, where the case involves claim handling issues, it seems speculative, at best, that the plaintiff might have another claim involving a similar factual scenario in the future that might involve the same issue.  There may well be no reasonable likelihood of future harm, and thus no standing to seek injunctive relief as to future claims (and injunctive relief as to a prior claim would be nothing more than seeking damages in disguise).  In an underwriting case, once the named plaintiffs are aware of the allegedly improper practice, when their policies are renewed in the future it seems hard for them to contend that they can be “victimized” again.  These kinds of issues should present substantial obstacles to certification of injunctive-only insurance class actions.

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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.