One of the issues that lawyers debated after the Supreme Court’s decision in Standard Fire Ins. Co. v. Knowles (blog post) was whether the Court had effectively overturned precedent in the Ninth Circuit and Third Circuit on the burden of proof that the party asserting federal jurisdiction bears in establishing the amount in controversy under the Class Action Fairness Act (“CAFA”).  Knowles held that a named plaintiff could not stipulate to an amount in controversy below $5 million in order to evade federal jurisdiction under CAFA.  But the Ninth and Third Circuits had previously held that when a plaintiff alleges an amount in controversy below $5 million, the defendant must establish an amount in controversy over $5 million to a legal certainty.  Some other circuits had adopted a preponderance of the evidence standard.  So, did the Supreme Court, by invalidating stipulations (and, by implication, allegations) regarding the amount in controversy, overrule the Ninth and Third Circuits?  Yes, according to the Ninth Circuit.

In Rodriguez v. AT&T Mobility Services, LLC, No. 13-56149, 2013 U.S. App. LEXIS 17851 (9th Cir. Aug. 27, 2013), the plaintiff had attempted to waive any claim by the class over $5 million, in order to avoid federal jurisdiction.  Based on that waiver, the district court remanded the case prior to the Knowles decision.  AT&T appealed, and the remand order obviously had to be vacated after Knowles was decided.  The Ninth Circuit also took the opportunity, however, to address whether the burden of proof rule had changed. 

The panel explained that it was bound to follow prior Ninth Circuit precedent unless an intervening Supreme Court decision was “clearly irreconcilable” with the prior precedent.  The court held that the Knowles decision met this standard essentially for two reasons: 

  • First, the Ninth’s Circuit’s prior decision imposing a “legal certainty” standard on defendants was based, in part, on a principle that “plaintiff is the ‘master of her complaint’ and can plead to avoid federal jurisdiction.’”  Id. at *14.  The court explained that this “legal certainty standard [was] a consequence of a plaintiff’s ability to plead to avoid federal jurisdiction” and “[t]hat principle is not viable in actions involving absent class members,” in light of Knowles.  Id. at *17-18.  Knowles had thus “effectively overruled” prior circuit precedent.  Id. at *18. 
  • Second, the Ninth Circuit’s prior case law had “reasoned that the initial jurisdictional determination derives from the complaint, while Standard Fire mandates that courts determine their jurisdiction by aggregating all potential class members’ individual claims,” and “[t]o do so, district courts must necessarily ‘look beyond the four corners of the complaint’ when the complaint alleges damages below the jurisdictional minimum     . . . .”  Id. at *16-17. 

This decision is quite helpful to defendants not only in correcting the Ninth Circuit’s burden of proof standard to a more lenient preponderance standard, but also in demonstrating how, in light of Knowles, plaintiffs cannot use pleading tactics designed to avoid federal jurisdiction where, based on the nature of the claims being asserted on behalf of the putative class, the dispute properly belongs in federal court.  As the Ninth Circuit explained, the plaintiff is no longer “master of her complaint” if she is acting contrary to the interests of the absent class members, and it is a district court’s responsibility to look beyond the pleadings to determine what claims the individual class members have, and what is truly at stake. 

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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.  Being in the insurance capital of Hartford, we have a national insurance litigation practice and most of the class actions I’ve defended have been brought against insurance companies. I’ve also handled some involving products liability, managed care, health care, utilities, financial services, higher education and environmental issues.

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 work, you might find me running lines or watching a musical with my teenage daughter who hopes to be a Broadway star (or taking her to voice or dance lessons) or reading a good book.

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