How is a district court supposed to apply the Supreme Court’s opinion in Wal-Mart v. Dukes?  Dive deeply into the specifics of the plaintiff’s causes of action, the defendant’s defenses and the relevant facts.  A more general, broad brush analysis will not do.  That was the message delivered by the Fifth Circuit fairly strongly in an opinion released last Friday. 

M.D. v. Perry, No. 11-40789, 2012 U.S. App. LEXIS 6061 (5th Cir. Mar. 23, 2012), is a class action brought by children in Texas’ foster care system, seeking declaratory and injunctive relief regarding alleged systemic deficiencies in that system.  It is similar to cases arising out of other states in which classes had been certified, and certification affirmed, by other circuits before Wal-Mart.  The Southern District of Texas certified a Rule 23(b)(2) class in this case, but the Fifth Circuit vacated and remanded largely because the district court’s analysis was not sufficiently rigorous and tailored closely enough to the requirements of Wal-Mart with respect to commonality.  The Fifth Circuit explained that: 

  1. The district court failed to focus intently on Wal-Mart’s key holding on commonality.  The Fifth Circuit explained that “the district court failed to consider or explain how the determination of [common] questions would ‘resolve an issue that is central to the validity of each one of the [individual class member’s] claims in one stroke.’  Rather, the district court merely found that the Named Plaintiffs’ various allegations of ‘systemic deficiencies’ . . . raised common questions of fact.”  Id. at *20 (quoting Wal-Mart).
  2. The district court’s analysis of common questions of law was too general and broad brush.  The Fifth Circuit explained that “the district court conducted no analysis of the elements and defenses for establishing any of the proposed class claims, nor did it adequately explain how those claims depend on a common legal contention whose resolution ‘would resolve an issue that is central to the validity of each of the [individual’s] claims in one stroke.”  Id. at *24-25 (quoting Wal-Mart).  This is required to provide a proper record for appellate review.
  3. Delving into the details is essential.  The Fifth Circuit instructed that “the district court must explain its reasoning with specific reference to the ‘claims, defenses, relevant facts, and applicable substantive law’ raised by the class claims, in order to ensure that ‘dissimilarities within the proposed class’ do not ‘have the potential to impede the generation of common answers.’”  Id. at *26 (citations omitted).

How can defendants take advantage of this?  Make the legal standards section of your opposition to class certification interesting to read.  Spice it up, and use this case (and others) to illustrate what the district court needs to do under Wal-Mart in evaluating class certification.  This case should be quite useful outside of the Fifth Circuit in reminding district courts of the importance of a thorough, rigorous analysis before certifying a class (although there are cases where no hard work is necessary to determine that the case is facially improper for certification).  Call plaintiffs’ counsel on the carpet when they proffer a superficial analysis that does not delve into the details of the causes of action, defenses and facts.

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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.