Justice Scalia made major contributions to class action law,  writing the Supreme Court’s opinions in Wal-Mart Stores, Inc. v. Dukes and Comcast Corp. v. Behrend, two of the Court’s most significant class action decisions in this decade.  Following President Trump’s nomination of Tenth Circuit Judge Neil M. Gorsuch to replace Justice Scalia, although it may be years before the most junior justice has an opportunity to author a major class action-related opinion, one might ask what type of contribution Judge Gorsuch might make to class action law if he is confirmed.

I found three relevant opinions authored by Judge Gorsuch, one involving class certification, and two involving the Class Action Fairness Act (CAFA). While I would not hazard to attempt to predict how Judge Gorsuch might decide the more far-reaching class certification issues that may come before the Supreme Court, his class action-related opinions seem to demonstrate a high degree of thoroughness and some judicial restraint. It appears that he endeavors to address head on, and persuasively, all of the significant arguments made by the losing party, and to research his opinions quite thoroughly (including citations to a large number of law review articles). That is, I think, what most lawyers and their clients hope for in a judge hearing their case.

Here is a summary of Judge Gorsuch’s class certification and CAFA opinions:

  • Shook v. Bd. of County Comm’rs, 543 F.3d 597 (10th Cir. 2008): In this opinion affirming a denial of class certification, Judge Gorsuch adhered closely to the abuse of discretion standard, explaining that “[w]hile we very well may have made a different decision had the issue been presented to us as an initial matter, and while other district courts perhaps could have chosen, or could choose, to certify similar classes, we cannot say the district court’s assessment was beyond the pale.” at 603-04. The opinion addresses Rule 23(b)(2) in detail, explaining how any classwide injunctive relief must satisfy the specificity requirements of Rule 65(d), and that “if redressing the class members’ injuries requires time-consuming inquiry into individual circumstances or characteristics of class members or groups of class members,” certification may be inappropriate. He explains how manageability is relevant under Rule 23(b)(2), and how “individual issues cannot be avoided simply by formulating an injunction at a stratospheric level of abstraction” that lacks sufficient specificity. Id. at 604. The plaintiffs, prisoners, sought to enjoin prison officials from certain acts, but the proposed injunctive relief either would require judgments to be made about individual factual circumstances, or was too vague to satisfy Rule 65. The opinion noted that subclasses might have been used to avoid some of the problems, but that district courts have no obligation to propose subclasses sua sponte. On another issue addressed in the opinion, Judge Gorsuch correctly anticipated the Supreme Court’s later approach to the question of the extent to which the merits may be addressed on class certification. The opinion cites several law review articles, more than I typically see in a federal court of appeals opinion.
  • BP America, Inc. v. Okla. ex rel. Edmondson, 613 F.3d 1029 (10th Cir. 2010): In this relatively short opinion, Judge Gorsuch identified criteria that the Tenth Circuit would consider in deciding whether to grant discretionary review of a remand order under CAFA. The opinion rejects an argument by the Oklahoma attorney general that the fact that the federal district court clerk had sent the remand order to the state court purportedly deprived the court of appeals of the opportunity to consider whether to grant review under CAFA. Judge Gorsuch finds that argument contrary to the plain language and intent of CAFA. His opinion then proceeds to adopt the First Circuit’s broad list of factors for the Tenth Circuit to consider in deciding whether to grant discretionary review under CAFA, although noting they are not necessarily exhaustive. The opinion discusses in detail the application of those factors in the decision to grant leave to appeal.
  • Hammond v. Stamps.com, Inc., 844 F.3d 909 (10th Cir. 2016): This case involved the amount in controversy under CAFA. The plaintiff claimed that Stamps.com failed to disclose that it would charge her a monthly fee even if she did not use the service. She sued on behalf of a putative class of customers who cancelled subscriptions based on the allegedly inadequate disclosure. Stamps.com demonstrated that if all of the putative class members obtained the damages sought by the named plaintiff, or even a fraction of that, the $5 million threshold under CAFA would be easily met. The district court, however, concluded that the defendant had not met its burden of proof because it had failed to isolate the claims of those who “felt duped” by inadequate disclosures. In reversing the district court, Judge Gorsuch explained how the term “in controversy” has long meant the amount that a factfinder might legally award, and such a “legal possibility” is sufficient for jurisdictional purposes. Judge Gorsuch further explained that the district court might well have been correct that the amount calculated by the defendant was unlikely to be awarded, but “the question at this stage in the proceedings isn’t what damages the plaintiff will likely prove but what a factfinder might conceivably lawfully award.” He further noted that this rule “serves a useful purpose, helping to keep cases from bogging down in mini-trials before they’ve even begun,” and also avoids forcing a defendant to attempt to prove its own liability in order to get into federal court. Addressing the plaintiff’s argument that the case should stay in state court until the actual stakes of the litigation are further fleshed out, Judge Gorsuch explained that CAFA provides for removal at the outset of a case and an early appeal of a remand order. “Our job,” he wrote, “is to abide Congress’s policy directions, not replace them with others of our own hand.”
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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.