The filed rate doctrine is a general principle that a suit cannot be brought against an insurance company, or other company that is subject to rate regulation (such as a utility) challenging the appropriateness of rates that were filed with a regulatory agency.  The rationale for this doctrine is essentially that ratemaking is properly within the competency and responsibility of the agency, and courts are ill-equipped to set rates, which they would have to do if they concluded the current rates were improper.  This doctrine comes into play in insurance class actions involving underwriting issues where the plaintiff attempts to challenge rates that are filed with one or more state insurance departments.  A recent Third Circuit opinion, in a case in which Retired Supreme Court Justice Sandra Day O’Connor sat on the panel, reaffirmed the breadth of the filed rate doctrine and its applicability to class actions.

In re New Jersey Title Insurance Litigation, No. 10-3343, 2012 U.S. App. LEXIS 12057 (3d Cir. June 14, 2012)  was a putative class action brought against title insurance companies, alleging that they fixed the rates for title insurance in New Jersey, in violation of federal and state antitrust law.  The district court dismissed the complaint based on the filed rate doctrine, and the Third Circuit affirmed.  The Third Circuit’s opinion made two important points: 

  • The court rejected the plaintiffs’ position that the filed rate doctrine would be inapplicable assuming that the New Jersey Department of Banking and Insurance did not conduct a “meaningful review” of the rates but instead essentially simply “rubber stamped” them.  The Third Circuit explained that “[t]he Supreme Court has indicated that the doctrine applies whenever rates are properly filed with a regulating agency,” and “[t]he Supreme Court moreover has rejected the notion that agencies must ‘meaningfully review’ rates under the filed rate doctrine.”  Id. at *13, 19.  The Third Circuit disagreed with a Sixth Circuit case in which that circuit had found that the filed rate doctrine was inapplicable where a regulatory scheme required only “non-disapproval” of rates by the agency rather than affirmative approval of them.  Id. at *17-18.  (The Third Circuit noted, however, that the New Jersey statutes implicated by the case at bar required affirmative approval of title insurance rates.) 
  • The court also rejected the plaintiffs’ argument that achieving nondiscrimination in rates among ratepayers is essential to the applicability of the filed rate doctrine.  As the court noted, putative class actions by their very nature reduce the problem of discrimination among ratepayers (because, assuming the putative class is defined in a sufficiently broad manner and the putative class is certified, all similarly situated ratepayers will either win or lose together).  This portion of the Third Circuit’s decision confirms that the filed rate doctrine applies to class actions.

The potential applicability of the filed rate doctrine should be considered in defending any class action that involves underwriting issues.  Although the allegations of the complaint may not appear to directly implicate the validity of rates, the doctrine can apply in some circumstances where the claims indirectly challenge insurance rates.  The doctrine also might apply in some circumstances where the case challenges policy forms that have been filed with insurance departments and either affirmatively approved or not disapproved.

Tags: Filed Rate Doctrine, Third Circuit
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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.  Being in the insurance capital of Hartford, we have a national insurance litigation practice and most of the class actions I’ve defended have been brought against insurance companies. I’ve also handled some involving products liability, managed care, health care, utilities, financial services, higher education and environmental issues.

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 work, you might find me running lines or watching a musical with my teenage daughter who hopes to be a Broadway star (or taking her to voice or dance lessons) or reading a good book.

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