A recent decision by the D.C. Circuit provides a detailed analysis of how the circuit courts of appeal have applied the commonality standard articulated in Wal-Mart v. Dukes. The key point I see here is that not only do plaintiffs need to identify at least one common question, the answer to which is likely to drive resolution of the litigation, but where the common question is a question of law, there must be evidence that the alleged legal violation was committed in the same manner with respect to the entire class. Broadly-framed, vague common questions are unlikely to succeed, forcing plaintiffs to frame their cases more narrowly.

In DL v. District of Columbia, No. 11-7153, 2013 U.S. App. LEXIS 7375 (D.C. Cir. Apr. 12, 2013), the plaintiffs brought a putative class action alleging that the District of Columbia has systematically failed to properly identify preschool children in need of special education and provide services to them where required by the Individuals with Disabilities Act. The district court certified a class of children who were or may be eligible for such services and had not been identified. The district court framed the common question as whether the class members had received a “free appropriate public education,” finding that issue susceptible to classwide proof. Id. at *7-8, 13. After certifying the class, the district court found liability and imposed an injunction.

The D.C. Circuit vacated the certification of the class, and therefore also vacated the finding of liability and the injunction. Focusing on the issue of commonality and citing a number of opinions by other circuits applying Wal-Mart, which “changed the landscape,” the court of appeals explained that:

After Wal-Mart it is clear that defining the class by reference to the District’s pattern and practice of failing to provide FAPEs [free appropriate public educations] speaks too broadly because it constitutes only an allegation that the class members ‘have all suffered a violation of the same provision of law,’ which the Supreme Court has now instructed is insufficient to establish commonality given that the same provision of law ‘can be violated in many different ways.’ Wal-Mart, 131 S. Ct. at 2551. In the absence of identification of a policy or practice that affects all members of the class in the manner Wal-Mart requires, the district court’s analysis is not faithful to the Court’s interpretation of Rule 23(a) commonality.

. . . [T]he harms alleged to have been suffered by the plaintiffs here involve different policies and practices at different stages of the District’s Child Find and FAPE process; the district court identified no single or uniform policy or practice that bridges all their claims. . . . Wal-Mart instructs that holding that the District has violated the IDEA as to each class member is not enough to establish Rule 23(a) commonality, 131 S. Ct. at 2551, in the absence of a uniform policy or practice that affects all class members.

Id. at *18-24 (emphasis added). The court noted, however, that, the use of subclasses proposed by the plaintiffs (which had not been addressed by the district court) potentially could satisfy commonality, making clear that it did not believe that a class action on this type of issue could never be certified. This would require that there be a uniform policy or practice affecting all members of each subclass. Id. at *25. Judge Edwards’ concurring opinion noted that “[a]n illegal policy or practice affecting all class members would provide the ‘glue’ necessary to litigate otherwise individualized claims as a class.” Id. at *34 (Edwards, J., concurring).

So what does this mean for insurance class actions? The mere fact that an insurer has allegedly breached the same insurance contract or committed a statutory violation with respect to the putative class members should not be enough to establish commonality. Rather, where the claimed breaches of contract or statutory violations occurred in different manners with respect to different class members (or members of a subclass), plaintiffs are unlikely to obtain class certification. What class certification is likely to come down to, as I’ve said before, is a detailed examination of the facts of individual putative class members’ claims, with a focus on how those claims would be tried if they were tried as individual cases. Insurers should demonstrate that, even where mistakes may have been made on some individual claims or transactions, those mistakes were made for different reasons, and different defenses, based on different factual scenarios, would be presented at trial. The only way to demonstrate this is by an in-depth examination of individual claims and transactions. In light of this and other similar decisions, I also expect to see more attempts to certify subclasses, with more narrowly-framed common questions, as plaintiffs’ lawyers try to find a way around the obstacles that Wal-Mart and its lower court progeny impose. Smaller classes focusing on narrower common issues are likely to be the wave of the future.

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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.