Some loyal readers of my blog may recall my June 8, 2011 blog post about the district court’s approval of the class action settlement in In re Dry Max Pampers Litigation.  This case alleged that Pampers “Dry Max” diapers purportedly caused excessive diaper rash.  Both the U.S. Consumer Products Safety Commission and Health Canada investigated the issue and found the allegations meritless.  The parties then reached an innovative settlement that would provide injunctive relief (labeling and website changes) and a refund for one box of diapers (with proof of purchase), and would prohibit class members from bringing future class actions on the same issue, but would allow class members to file their own individual lawsuits for personal injuries or actual damages.  The concept of barring future class actions but not individual suits was novel, and interesting.

The Sixth Circuit, however, found the settlement agreement unfair, although it did not focus on the agreement’s bar on future class actions.  In re Dry Max Pampers Litigation, No. 11-4156, 2013 U.S. App. LEXIS 15930 (6th Cir. Aug. 2, 2013).  The problems the Sixth Circuit had with the settlement included: 

  • The parties did not show that the one box refund program was of significant value given that consumers rarely retain receipts and UPC codes for years, and Pampers had already offered this relief voluntarily for a five-month period.  Id. at *7-13. 
  • The court found that the labeling change, which advised consumers to call a 1-800 number for information on diaper rash, etc., as “little more than an advertisement for Pampers.”  Id. at *14-15.  The website change essentially told parents to call a doctor for advice on a severe diaper rash, particularly with other accompany symptoms. The court found that this was of minimal value.  Id. at *15-18. 
  • The $2.73 million attorneys’ fee award was unjustified in light of the “illusory” relief the court found that the settlement provided to class members.  Id. at *19. 
  • The $1,000-per-child compensation for the class representatives appeared excessive in comparison to their actual damages and created a disincentive for them to act in the best interests of the class.  Id. at *21-24. 

Judge Cole dissented, stressing that “[a]lthough the relief offered to the unnamed class members may not be worth much, their claims appear to be worth even less.  Nobody disputes that the class’s claims in this case had little to no merit.  In the absence of this settlement, class members would almost certainly have gotten nothing.”  Id. at *25.  The dissent has a fair point, although it does not address the size of the fee award. 

What is the take away here?  I think it should still be possible to settle an unmeritorious class action in a settlement that provides some small amount of relief to the class, and bars them from filing new class actions but not individual suits.  But the class relief should pass a “smell test” (especially if it involves diapers), and the fee award should be more consistent with the relief being provided to the class. 

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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.