This is a guest blog post by my friend Seth Schmeeckle, a partner with Lugenbuhl, Wheaton, Peck, Rankin & Hubbard in New Orleans and Baton Rouge, Louisiana.  Seth and I worked together on defending a number of Hurricane Katrina insurance class actions.  As you may recall, he did a previous guest post regarding the Louisiana Supreme Court’s decision to adopt the Wal-Mart v. Dukes approach to commonality in Price v. Martin, 79 So. 3d 960 (2011).  Here is Seth’s post:  

The Louisiana Fourth Circuit Court of Appeal recently dealt another blow to the embattled Louisiana Citizens Fair Property Insurance Corporation (“Citizens”), affirming a lower court’s decision to deny Citizens’ motion to decertify a class action arising out its handling of claims for damages caused by Hurricanes Katrina and Rita.  Orrill v. La. Citizens Fair Plan, 2011-1541 (La. App. 4 Cir. 6/13/12), 2012 La. App. LEXIS 861.  In denying the request to decertify the class, the court made clear that a motion to decertify is not intended to be a re-hashing of the arguments previously advanced and decided in the context of a certification hearing, and is instead governed by an entirely separate framework, namely, whether there has been a material change in fact, law or circumstance since the initial certification decision.  According to the Louisiana Fourth Circuit, the trial court may only decertify where evidence of such a material change is presented, and the court’s decision will be reviewed for an abuse of discretion

The certification issue in Orrill has been litigated in both the trial and appellate courts for the past several years.  After a proposed class settlement was vacated in April 2010 due to conflicts between the settling class members, see Orill v. AIG, Inc., 38 So. 3d 457 (La. Ct. App. 4 Cir. 2010), the matter was remanded back to the trial court, where the class was redefined to include:

All present or past insureds of [Citizens] who, on or after August 29, 2005, provided notification of loss resulting from Hurricane Katrina and/or Rita to [Citizens] notwithstanding whether loss adjustment was initiated within thirty (30) days after notification of loss, whose claims were not followed by written offer to settle within thirty (30) days after receipt of satisfactory proof of loss.

Citizens consented to this redefinition, but cautioned that it would file a motion to decertify the class if the parties could not subsequently reach a settlement agreement.  After negotiations failed, Citizens filed a motion to decertify that relied in large part upon the same analysis the trial court utilizes in deciding an initial motion to certify a class.  The trial court rejected Citizens’ arguments, emphasizing that the proper analysis was whether a material change in the facts, law or circumstances had occurred since the initial certification decision, and holding that the failure to consummate a settlement agreement did not constitute a material change.  Finding no abuse of discretion, the appellate court affirmed the denial of the motion to decertify.

The import of the court’s decision is two-fold.  First, it serves to warn class action defendants that the failure to reach a settlement agreement is not a “material change” warranting decertification of a class, even where the defendant may have consented to the class definition with the express goal of facilitating a settlement.  Second, it clarifies that the “heightened commonality” analysis articulated by the Supreme Court in Walmart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) and adopted by the Louisiana Supreme Court in Price v. Martin, 79 So. 3d 960 (2011), is largely irrelevant in the context of a motion to decertify a class.  One possible exception to this latter point, which could have been but apparently was not argued by Citizens, may exist where a class was certified prior to the decision in Price.  In that instance, it may be possible to argue that the heightened commonality analysis adopted in Price, which seemingly precludes certification where liability will turn on the resolution of individual issues, constitutes a “material change” in the law that would have prevented certification if it had been had been in place at the time the initial decision was made.  It is a subtle distinction in posture, but perhaps one that is significant enough to mandate a different result.  

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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.