Here is part two of my insights from last week’s DRI class action seminar:

No Injury Classes and Article III Standing: Andrew Pincus, lead counsel in Spokeo, Inc. v. Robins (to be decided by the Supreme Court next Term, see my May 1, 2015 blog post), spoke on this subject. The question presented is whether a federal statute can confer standing on a named plaintiff simply based on a statutory violation where the plaintiff does not suffer any concrete harm. Pincus expects the case will be argued in the first or second week of November. His client is making two alternative arguments — a constitutional argument, and a statutory interpretation argument. The constitutional argument is, of course, that Article III requires a concrete harm, in part because the injury needs to be of the type that was recognized in 1787. Also, a showing of actual harm to the plaintiff is necessary, as a matter of separation of powers, to separate private party suits from government enforcement proceedings. Otherwise, there would be an improper delegation of executive branch power. The alternative argument is that the statute at issue (the Fair Credit Reporting Act) should be interpreted as requiring a concrete harm, to avoid a constitutional problem. This is based on the principle of constitutional avoidance, and the principle that if Congress is going to take a step that interferes with the ordinary constitutional framework, it must do so clearly. If Congress were to allow a statutory violation without a concrete harm, it likely would impose a monetary cap with respect to class actions. Most of this seems likely to have less direct impact on insurance class actions, which generally involve state law and rarely present federal statutory claims. But this decision, to the extent it is on constitutional grounds, would govern standing in federal court in diversity cases, and could also influence state courts that look to federal law in evaluating their own standing.

International Class Actions: This panel explained how most of the world now has class actions, and in many countries they are conducted much differently from U.S. class actions. Some of the procedures sound pretty scary from a defense perspective. In Brazil and most of Latin America, the defendant does not know how the class will be defined, and thus cannot properly evaluate the size of the class or exposure, until after liability is determined! And Brazil’s high court has ruled that all class actions are nationwide! Mexico allows class members to opt into the class up to 18 months after the trial court’s decision on the merits. In Argentina, the defendant has only five days to answer the complaint, produce its evidence and identify witnesses for what amounts to an immediate trial on the merits. And we thought the Eastern District of Virginia was the “rocket docket.” France just started to allow class actions last Fall. They will decide both suitability for class treatment and liability in the “first judgment,” although they have no punitive damages. One of the first class actions filed was against an insurance company (no surprise there). In Canada, generally there is a low threshold for class certification, issue certification is common, and defendants typically have few options at the class certification stage. But defendants win some class actions at trial, and they benefit from a “loser pays” rule with respect to attorneys’ fees (although third-party funding is allowed, allowing plaintiffs’ lawyers to shift the risk), and there are no juries. The class action environment internationally is certainly a factor that should be considered when insurers and other large corporations are considering international mergers.

Media Relations in Class Cases: Jim Moorhead presented on this topic. He noted how plaintiffs’ firms have tended to dominate Google searches regarding particular class actions or “hot” issues in class actions generally. Defendants can pay for ads that counteract that. (And it strikes me that defense lawyer blogging helps somewhat since those blog posts often make the first or second page of Google.) Jim also talked about the importance of a social media presence, another area where plaintiffs’ lawyers tend to dominate. Jim emphasized the importance of establishing the company as a source of timely and accurate information on the issue with a strong initial response that is not legalistic, and not a response that may have to be retracted later. He stressed that a company, when faced with a difficult issue, should take specific actions and steps that demonstrate that it is addressing the issue (e.g., stating publicly that it is assigning certain people to investigate or otherwise handle a matter), and make statements about how the company is committed to doing what is lawful and ethical (and making improvements if appropriate). He said there are ways to do this effectively without creating problems in the litigation. When dealing with investigative reporters, he suggested first trying to understand what the story being worked on is, and providing a short written response tailored to that.

Psychology of Legal Ethics: Kevin Underhill of Shook, Hardy & Bacon LLP presented on this topic. Using Watergate and other examples, one of his main points was that ethics transgressions can arise because of “group think,” i.e., the tendency of individuals working on a team not to want to challenge the leader or the general sentiment or initial thinking of a group. This problem can be avoided with a culture that makes sure everyone is comfortable and encouraged to make their own independent evaluation and raise concerns. Other problems arise as a result of moving too quickly, without taking the time to stop and think things through.

 

Print:
EmailTweetLikeLinkedIn
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.