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

                        2008                                                    95

                        2009                                                    106

                        2010                                                    108

                        2011                                                    84

                        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).  

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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.