In a title insurance class action, the Fifth Circuit recently illustrated one method of applying the Supreme Court’s decision in Wal-Mart v. Dukes:  Analyze separately each question that the named plaintiffs propose as a  common question of law or fact.  Determine whether it is actually a proper question that a judge would decide as a matter of law, or a jury (or judge, if no jury is demanded) would decide at trial as a matter of fact.  Then determine whether each question is in fact a common question under Dukes, i.e., whether its truth or falsity will resolve an issue central to the validity of every putative class member’s claim.  Also determine whether the question presupposes the resolution of a prior question that is not a proper common question.  This type of question-by-question analysis places the burden on the plaintiffs to demonstrate how they can prove a case on a class-wide basis, and can be a useful framework for the parties and the court to analyze class certification issues.

Ahmad v. Old Republic National Title Insurance Company, No. 11-10695, 2012 U.S. App. LEXIS 16901 (5th Cir. Aug. 13, 2012) was one of numerous class actions recently brought against title insurers claiming that they have purportedly overcharged homeowners for title insurance policies purchased in connection with refinancing a home.  (For more on developments in these cases, see the Title Insurance page of my blog.)  The Fifth Circuit reversed a decision from the Northern District of Texas granting class certification.  The court found that the outcome was largely controlled by its decision last year in Benavides v. Chicago Title Ins. Co., 636 F.3d 669 (5th Cir. 2011).  Under the Texas Department of Insurance’s rate rules, a detailed individualized analysis of every file would be required to determine whether a discount should have been applied, and therefore common issues would not predominate.

What I found most interesting about the Ahmad decision was how the Fifth Circuit went about analyzing the class certification issues.  It quoted all eleven proposed common questions of law and fact as alleged by the plaintiffs.  The court then focused on the questions that the district court had found to be common questions, and determined that none of them were proper common questions because: (1) a proposed common question of fact could not be answered yes or no; (2) the question as formulated could not be presented to a jury at trial; (3) the question could not be answered based on common evidence but rather would require a file-by-file review; and/or (4) a question presupposed the resolution of another question, which was not a common question.

The Fifth Circuit’s analytical methodology in Ahmad may be useful to lower courts in deciding  class certification issues, and to parties in briefing them.  Of course, once common questions are identified (if any), the next step, where a Rule 23(b)(3) class is being proposed, is to determine whether those common questions predominate over individual questions.  A similar analysis might be constructed for that part of the analysis, with the defendant identifying each of the individual questions and the court assessing whether each proposed individual question is a proper individual question of law or fact, and then whether the common questions or the individual questions predominate.

Tags: Commonality, Fifth Circuit, Wal-Mart v. Dukes
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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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