Last week I attended the Defense Research Institute (DRI) Class Action Seminar in Washington, DC.  Here are some insights I gleaned from day 1 of the seminar (focusing on presentations that had some relevance to insurance class actions):

Comcast v. Behrend (see blog post)Miguel Estrada, who argued this case for Comcast in the Supreme Court, noted that whether, or to what extent Daubert applies at class certification is less important in light of the Court’s decision. If the expert’s testimony, even if admissible, cannot prove damages (or whatever the issue is) on a classwide basis, a class should not be certified under the Court’s decision. Estrada noted that a Ninth Circuit opinion has read Comcast in a limited manner (Levya v. Medline Industries, Inc.).  He predicted that  the use of Rule 23(c)(4) issues classes is likely to be a focus in the future, and there is already a circuit split on whether the case as a whole must satisfy Rule 23(b)(3)’s predominance requirement if Rule 23(c)(4) is used.  The use of (c)(4) to separate liability from damages also can potentially present a Seventh Amendment problem because the second jury cannot reexamine a question decided by the first jury.

Amgen v. Conn. Retirement Plans (see blog post): Noah Levine of WilmerHale, who led the briefing for Amgen, presented on this case.  I’ll focus on the potential impact outside of the securities realm.  Levine predicted that Amgen should have little impact outside the securities context.  To the extent Amgen has some language regarding general class certification principles that is shaded in a manner potentially more favorable to plaintiffs, there is a counter to it in other Supreme Court opinions, including Comcast, which came down soon after.

Impact of Wal-Mart v. Dukes: Jennifer Quinn-Barabanov of Steptoe & Johnson presented on the impact that Wal-Mart v. Dukes has had in the lower courts.  It has resulted in a greater focus in class certification decisions on the elements of each cause of action, and whether the theory of liability or statistics being proffered are sufficiently aligned with the class definition.  Courts  are skittish about certifying damages classes under Rule 23(b)(2).  How Daubert is applied at class certification does not seem to be making much of a difference in outcome.  In cases where discovery is largely complete by the time class certification is decided, more rigorous scrutiny is appropriate.

In-House Counsel Panel:  Members of an in-house counsel panel from several large corporations indicated that they have not seen a decrease in class action filings despite the recent Supreme Court decisions over the last several years.  Some companies that have not implemented arbitration provisions or do not have the ability to do so have seen a greater number of class action filings.  They are seeing more filings in federal circuits and districts perceived as more favorable on class certification.  Fewer Rule 23(f) petitions are being granted by the courts of appeals.  It was also expressed that the plaintiffs’ bar tends to be more active in participating in judicial education and the defense bar should be more active to balance that out.  Too often judges handling an MDL perceive the desired outcome as a global settlement and there can be insufficient consideration of the merits.  There is a greater willingness to try class actions, even large ones, when necessary to send a message to the plaintiffs’ bar.  Outside counsel trying a class action should be able to put together a real budget and stay within it.

Class Action TrialsNeal Walters of Ballard Spahr presented on class action trials.  The charge conference is particularly difficult and time consuming in a class action trial.  Courts have taken different positions with respect to introducing absent class member evidence, but such evidence can be introduced at least through experts.  Juries can be uncomfortable with the whole concept of making a decision about a class when there is only one representative participating.  Neal offered three “rules” for trying a class action on the defense side: (1) expand the record to include the experiences of absent class members; (2) plaintiffs’ experts become more exposed at trial because plaintiffs’ theories change, and there can be a mismatch between the expert’s testimony and the class representative’s situation; and (3) even a partial defense verdict can result in decertification.  He left us with the following takeaway: “the value of persistence and looking at class certification at every stage of the case is priceless.”

Lessons Learned from the Toyota MDLCari Dawson of Alston & Bird  presented on lessons learned from the MDL proceeding arising from claims involving unintended acceleration in Toyota vehicles.  She talked about the importance of understanding a company’s ultimate goals and objectives, and mapping out a plan early.  In a case of this size, she uses “special teams” for particular projects in the case, such as comprehensive choice of law research, factual development and briefing.  She also talked about the importance of making policy arguments, not just legal ones.  For example, where the issue is whether putative class members have to sustain an injury-in-fact, one policy argument that can be made is that we do not want to live in a world where people are paid for harm that they may never sustain.  Rather, scarce judicial resources should be devoted to compensating people who have real injuries.  It is also important to keep in mind the client’s business objectives.  For example, making a witness cry at a deposition may not be consistent with the client’s objectives where the client would like that witness (and his or her family and friends) to continue doing business with the company.

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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.