One strategy defendants often consider at the outset of a class action is filing a motion to strike the class allegations based on the pleadings. Such a motion challenges whether the case as pled could ever be certified as a class action, similar to a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted.  The defense strategy here is to try to avoid the time and expense of discovery on class certification-related issues where the court might conclude that such discovery is not necessary.  But there is some risk for the defendant because a denial of a motion to strike can sometimes make it more likely the judge will certify a class, and the filing of a motion to strike also can prompt a plaintiff to re-plead the case in a manner that increases the chances of certification.  In federal court, a motion to strike class allegations is provided for by Fed. R. Civ. P. 23(d)(1)(D), which states that “the court may issue orders that . . . require that the pleadings be amended to eliminate allegations about representation of absent persons and that the action proceed accordingly . . . .”  Many state class action rules modeled on the federal rules have similar provisions.  (Sometimes defendants also rely on Rule 12(f), which authorizes a motion to strike from a pleading “any redundant, immaterial, impertinent, or scandalous matter,” but in my view that is not the proper authority for a motion to strike class allegations.  It might make sense to rely on Rule 12(b)(6) as well as Rule 23(d)(1)(D) given that you are challenging whether the complaint states a claim upon which class relief could potentially be granted.)

The recent decision in Lawson v. Life of the South Insurance Company, Case No. 4:06-cv-42 (WLS), 2012 U.S. Dist. LEXIS 140831 (M.D. Ga. Sept. 28, 2012) will be particularly useful to insurance companies in support of motions to strike class allegations, especially in multi-state or nationwide class actions, and cases in which the putative class claims implicate different policy forms.  Lawson involved a credit insurance policy purchased in connection with an automobile loan.  Under the terms of the policy, if the loan was paid off early, unearned premium was to be refunded.  The plaintiffs claimed that the defendant failed to make a refund in accordance with the policy.  Id. at *3-4.  The complaint pled a nationwide class.  The insurer’s motion to strike class allegations focused on key differences in policy forms issued to putative class members, and differences in state law.  The insurer argued that these differences would defeat the predominance and superiority requirements for class certification under Rule 23(b)(3). 

The court concluded that it was appropriate to decide these issues on a motion to strike class allegations because “the issues for class certification are sufficiently represented in the pleadings . . . .”  Id. at *14.  The court agreed with the insurer that differences in the contract language and differences in state law would readily preclude class certification.  Here are some key passages from the opinion:

To illustrate, some of Defendant’s insurance contracts provide for an insured’s right to a refund or an account credit of the unearned premium, but do not require the insured to notify Defendant. (See, e.g., Doc. 144-2 at 51-54). Others explicitly inform the insured that he must contact the insurer to inform it of early payoff (id. at 10, 37), while others instruct the insured’s creditor, and not the insured, to notify Defendant of the early termination of credit insurance due to early payoff or otherwise (id. at 98).

The required period within which a refund must be made also differs among the credit insurance contracts. Some contracts state that a refund must be made “promptly” (see, e.g., Doc. 144-3 at 98) or “promptly” within thirty days of the notice of early payoff (id. at 33), while others require payment of the refund with no designation of a required time period within which to do so (id. at 107). The contracts further vary as to the minimum refund amount: some of Defendant’s contracts state that refunds under $10 will not be made (see, e.g., Docs. 144-2 at 5, 144-3 at 112), and others set the minimum amounts at $1, $3, or $5 (see, e.g., Docs. 144-4 at 4, 6, 12).

As a result of these and other variations among the contract provisions, which the Court finds to be material, the resolution of the overarching common issue of whether and when Defendant has (or will have) a duty to refund an unearned premium “breaks down into an unmanageable variety of individual legal and factual issues.” Klay, 382 F.3d at 1264.

. . . 

The Court’s review of applicable bodies of state law on credit insurance law reveal that substantial, material differences exist among the applicable state laws with regard to statutory requirements on notice provisions, the calculation of the refund amounts, and statutory minimum refunds, among other requirements. (See Doc. 144-5 at 48 to 51, 102 & accompanying notes; Doc. 144-7 at 24 to 77 (tables comparing relevant state statutory provisions on credit insurance policies)). Like the material variations among the provisions of Defendant’s various contracts, see supra p. 13-14 & n.9, these state laws differ, for example, as to whether the lender, creditor, or insurer is obligated to refund the unearned premium; whether the debtor is required to provide notice of early payoff; and the formula for calculating the unearned premium. 11 (See Doc. 144-7 at 24 to 77).

Id. at *24-25, 31.

 

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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.

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