One question I’ve received from readers is whether class action filings against the insurance industry have decreased after the Supreme Court’s decision in Wal-Mart v. Dukes, which was issued in June of 2011. Anecdotally some people in the industry seem to have perceived a decrease in filings, at least against their companies. Interestingly, however, the available data does not really bear that out industry-wide.
The only available data I’m aware of is for federal cases that are either filed initially in federal court or removed to federal court. The civil cover sheets used in federal court require a plaintiff who is filing a case, or a defendant removing a case, to select a particular category and there is one category – “Contract – Insurance (110)” – that clearly encompasses insurance. There is also a box to be checked off for class actions, so data is maintained on the number of class actions that fit within this category. Using this data, the total filings from 2008 to 2012 have been as follows, through July 13, 2012:
Year Number of Class Actions Filed
2012 49 (98 if annualized)
Credit and thanks go to Terence Ridley of Wheeler Trigg O’Donnell LLP, who collected this data and presented it at a program on class actions at the recent annual meeting of the Federation of Defense and Corporate Counsel (FDCC), which was my first meeting as a member of the FDCC.
The 2011 number, which for about half of the year includes post-Wal-Mart filings, is down significantly (about 23%) from 2010. But if you annualize the 2012 number by extrapolating it out for the rest of the year, it becomes slightly higher than 2008, and only 10% below the 2010 filings. If you look at insurance filings as a percentage of all class action filings, the insurance filings have been in the 19% to 24% range throughout the 2008-2012 period.
Of course, this data has its limitations. The extrapolation for 2012 may not bear itself out if there are fewer filings later this year. Also, attorneys do not always check the correct box on the civil action cover sheet, and there are class actions filed against insurance companies that might better fit into some other category. Attorneys also sometimes do not properly check off the “class action” box on the form when a case is a class action. But one might expect that this kind of human error would not vary substantially over the years. This data obviously does not tell us anything about state court class action cases that are never removed to federal court, and I’m not aware of available data on state court filings (if you are, I’d love to share that with readers of this blog too).