I’ve noted before that Judge Posner of the Seventh Circuit has been particularly prolific in writing class certification opinions.  His latest one, Espenscheid v. DirectSat USA, Inc., No. 12-1943, 2013 U.S. App. LEXIS 2409 (7th Cir. Feb. 4, 2013), makes some key points about the usefulness of trial plans in evaluating whether class treatment is proper and regulatory action being a potentially superior form of relief to a class action.  This latest opinion also contains some dicta about Rule 23(b)(2) that reiterates a conclusion reached in another recent Posner decision. 

Espenscheid was a hybrid of a class action suit and a collective action under the Fair Labor Standards Act.  The putative class consisted of employees of DirectSat who drive around to people’s homes, climb on roofs and install and repair satellite dishes.  They were paid by the job, not by the hour, but needed to keep track of their hours to make sure they were paid at least minimum wage plus overtime where applicable.  Allegedly, the employees were required to do unpaid work, told not to write down some of their time, and in some cases were not paid minimum wage and/or were not paid overtime.  Id. at *5-6, 7-8.  The district court initially certified several subclasses, but later decertified all of them when, after the plaintiffs were asked to submit a trial plan, it became clear the case could not be tried as a class action.  The Seventh Circuit affirmed.

Here are some highlights from the decision: 

  • Trial Plan:  The Seventh Circuit endorsed the district court’s decision to ask the plaintiffs’ counsel for a trial plan, remarking that “[t]his was a reasonable request . . . given the difficulty of trying a class action.”  Id. at *14.  The plaintiffs’ proposal was to have 42 class members testify at trial, but there was no showing that those 42 would be statistically or otherwise properly representative of the class, or that their experience properly could be extrapolated to the class as a whole.  The court wrote that “[t]o extrapolate from the experience of the 42 to that of the 2341 [class members] would require that ll 2341 have done roughly the same amount of work, including the same amount of overtime work, and had been paid the same wage.  No one thinks there was such uniformity.”  Id. at *9 (citations omitted).  This is a great example of how a trial plan can aid a court in evaluating whether class treatment is proper.  Defendants may want to ask for one.  While it may not always be an effective defense strategy, in many cases the plaintiff’s trial plan will be unworkable or will violate the defendant’s due process or Seventh Amendment rights. 
  • Regulatory Action as an Alternative to a Class Action:  Judge Posner suggested that the plaintiffs and their counsel had “overlooked a promising alternative to class action treatment in a case such as this . . . to complaint to the Department of Labor.”  Id. at *16.  Judge Posner noted that the Department of Labor has brought a number of enforcement actions on the type of issues presented by this case and has been successful in doing so.  Id.  From a defendant’s perspective, this is a potential argument against superiority.  Class treatment may not be the superior method of adjudication where it is particularly cumbersome and time-consuming for the judicial system and a state regulator (such as an insurance department, in the case of an insurance company) has adequate power to address the type of concern presented by the allegations in the class action. 
  • Rule 23(b)(2):  Judge Posner suggested in dicta that perhaps the plaintiffs could have sought only injunctive or declaratory relief under Rule 23(b)(2), which potentially could avoid the problem of individualized issues in determining damages.  Judge Posner’s recent decision in Johnson v. Meriter Health Servs. Employee Retirement Plan, 702 F.3d 364 (7th Cir. 2012) (my blog post) speaks to these issues.  But I wonder whether that is really an end-run around the rule that class actions that are in effect seeking damages (which would be the real objective of the declaratory or injunctive relief) belong under 23(b)(3), in order to protect class members’ rights to have notice and the opportunity to opt-out.  And how would a declaration or injunction establish liability as to any particular class member?  In this kind of case it seems that the most that could be ordered would be some kind of advisory opinion that would not resolve any particular individual’s claim.
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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.