After the U.S. Supreme Court heard lengthy oral arguments on Obamacare this week, it’s hard for me to resist saying something about it on this blog.  The issues before the Court, although they involve health insurance, for the most part have little to do with insurance law or anything that would impact insurance class actions.  But a recent column by George F. Will in the Washington Post caught my eye.  He highlights an amicus brief filed by the Institute for Justice, which argues that, as a matter of contract law, forcing individuals to enter into an insurance contract is contrary to the fundamental principle of mutual assent that has been a foundation of contract law for centuries.  I remember that being the focus of what was probably the very first contracts law class I had with E. Allen Farnsworth, but this has not been an obvious point when people think and write about the Obamacare debate.  The Institute’s brief explains how the law of contracts has held for ages that you cannot coerce someone to enter into a contract, which is why there are defenses of duress and fraud, for example.  The Institute argues that, if Congress has the power to compel people to buy an insurance product, why wouldn’t Congress have the power to compel people to buy other products it deems necessary for purposes of interstate commerce?  Where do you draw the line?

The Institute’s brief offers an interesting perspective on the issues before the Supreme Court.  There are, of course, some ways in which people are more or less forced to buy insurance, but generally there are exceptions.  For example, if you want to drive a car, which in many parts of our country is a necessity for the vast majority of people, typically you must buy auto insurance.  But states generally allow you to provide evidence that you have the financial means to self-insure as an alternative, and if you choose to live somewhere that has a good public transportation system you can avoid having a car at all.  And of course states have broader power than Congress does in any event.

There is no way of knowing whether the Court will address the Institute’s points at all, but if the Court were to take them up and analyze them, the decision might have broader impact on insurance law and some insurance class actions.  There are some class actions brought against insurers, and regulatory actions taken, where the gravamen of the case or regulatory action more or less seeks to force the insurer to enter into contracts with insureds, or renew contracts that the insurer would prefer not to renew, or decline to cancel contracts that the insurer believes it has the right to cancel.  As you delve into the details of whatever the specific issue may be in this kind of litigation or regulatory proceeding, don’t forget those basic, fundamental principles of contract law.

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.