I thought readers might find helpful some broader observations on strategies for defending class actions in 2016:

  • Dig in Deep Early: Some defense counsel are accustomed to the practice of filing a motion to dismiss in virtually every putative class action. Some in-house counsel, eager to save costs, have pushed defense firms to agree to prepare these motions for reduced flat fees, in the hopes of ending the case early and at a reduced cost. But if you lose that initial motion, which may not be researched as thoroughly because of a reduced flat fee, while you may still have plenty of additional arguments to make on class certification and on the merits, the plaintiffs will have more momentum and the judge may view the case as potentially more meritorious. I think the better approach is to spend the time and money digging deep into the legal issues to try to predict more accurately how the issues presented by a motion to dismiss ultimately might come out at the appellate level, and doing sufficient internal homework with the business units involved to evaluate the strengths and weaknesses on class certification. That comes at a greater cost than a “knee jerk” motion to dismiss, but it is money well spent because it puts everyone in a better position to make a more informed decision about whether a motion to dismiss or some other strategy (such as a motion to strike class allegations, or taking early depositions of named plaintiffs, or waiting to defend against class certification) is the better way to go.
  • Focus Intently on Each of the Elements of the Causes of Action and the Defenses: Federal district courts are increasingly taking a claim-by-claim, element-by-element approach to evaluating class certification. You will be well-served by having a memo written early in the case laying out each element of each claim and defense, what has to be proven, and assessing whether the evidence is likely to be common to the class or individualized. On the defense side there often are some elements of some claims that you may have to concede are likely to be the subject of common evidence. You need to identify early where to focus your efforts in discovery and briefing. This should not be an afterthought, after discovery has been taken and you are preparing your opposition to certification.
  • Think Deeply About How the Named Plaintiffs’ and Putative Class Members’ Cases Would Be Tried: When it comes time for the court to decide whether to certify a class, one of the best ways to defeat class certification is by demonstrating specifically what evidence you would want to put on if the named plaintiffs’ cases were tried that would be unique to those plaintiffs and could affect the outcome. Put yourself in the shoes of preparing to try one of those small individual cases and think hard about how you would do it. You can then build that up by making a similar showing with respect to putative class members, and where possible demonstrate that a substantial percentage of putative class members’ claims likely will require this type of individualized evidence that the defendant has a right to put on. One of the most significant nuggets of guidance we’ve received from the Supreme Court recently is that under the Rules Enabling Act, a court must not “giv[e] plaintiffs and defendants different rights in a class proceeding than they could have asserted in an individual action.” Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1048 (2016). If you have the right to put on individualized evidence in trying the named plaintiffs’ individual cases, you must have the same right if the case were tried as a class action. Demonstrating how you would try the named plaintiffs’ (and/or putative class members’) individual cases can be powerful in defending against class certification.

 

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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.