The Rule 23 Subcommittee of the federal Judicial Conference Advisory Committee on Civil Rules recently issued a report with proposed amendments to Rule 23. These are at an early stage and far from final recommendations. Here are some brief descriptions of them and some thoughts:

  • Settlement approval criteria: The proposal is to insert into the rule a series of specific findings that a court would be required to make in approving a settlement. Most federal circuits have adopted a similar set of factors to consider, and the proposal seems unlikely to result in a major change.
  • Settlement class certification: The proposed amendment would state explicitly that a court can certify a class for settlement purposes where the predominance requirement might not be satisfied at trial. From a defense perspective, this could be a helpful clarification.
  • Cy pres relief in settlements: The proposed amendment would require individual distributions to settlement class members where that is economically viable, and allow cy pres relief only where individual distributions are not viable. The cy pres recipient’s interests would be required to reasonably approximate the class members’ interests. This seems generally consistent with the recent trend of federal appellate authority in this area.
  • Objectors: The proposed amendment would require disclosure of any agreement made in connection with the withdrawal of an objection to a proposed settlement, and might require court approval (there are two alternative proposals). Another proposal would explicitly require objections to proposed settlements to comply with Rule 11, and provide for sanctions if the objections are insubstantial or not reasonably advanced for the purpose of rejecting or improving the settlement. These seem to be targeted to making it more difficult for “professional” objectors, who object for the purpose of trying to obtain settlement money.
  • Tenders of Relief / Rule 68 Offers: One proposal would not allow a putative class action to be terminated by a tender of relief to the named plaintiff, unless class certification has been denied, and it would allow an appeal to be taken. Another proposal would make Rule 68 inapplicable in class actions. Another proposal would re-institute a requirement for approval of pre-certification settlements with named plaintiffs. These proposals could be problematic for defendants – there needs to be an efficient way to resolve weak putative class actions prior to certification.
  • Issues classes: The proposal would have the rule state that predominance is not a requirement for certification of an “issues class” to resolve particular issues on a classwide basis under Rule 23(c)(4), and amend Rule 23(f) to give a court of appeals discretion to hear an interlocutory appeal from a decision certifying a class on a particular issue. This proposal would be most harmful to defendants, where in many circuits the question of whether an “issues class” has to satisfy the predominance requirement has not yet been resolved, and there is substantial authority favorable to defendants’ position.
  • Class notice: The proposal would explicitly allow electronic notice, which many courts are currently allowing, at least in part. Electronic notice, where feasible, obviously provides substantial cost savings.
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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.