Here are my highlights from the second day of DRI’s 2017 Class Action Seminar:

Class Action Waivers in Employment Agreements (Neal Katyal of Hogan Lovells)

Neal Katyal is a leading Supreme Court advocate and is litigating one of several cases involving class action waivers in employment agreements that will be argued in the Court early next Term. He offered some general thoughts on Supreme Court advocacy and how it differs from that in the courts of appeals. The Court is testing the logical limits of positions, focusing more on what the law should be as opposed to what the law is. It is thus helpful to have a broader understanding of what individual justices think the law is all about and try to move the law and your argument in the direction that fits with your client’s position. The central question in the upcoming cases involves the interplay between two federal statutes — whether the National Labor Relations Act supersedes the Federal Arbitration Act. The Solicitor General’s office has flipped its position to the employer side after President Trump took office, but the National Labor Relations Board is expected to remain on the other side.  The employer-side position focuses on an argument that the FAA’s savings clause does not apply when two federal statutes are at issue; it applies only if the other applicable law is state law. The employers also argue that under the Court’s decision in AT&T v. Concepcion, the savings clause does not apply to the fundamental aspects of arbitration. The employees argue that the savings clause applies based on illegality, and that the arbitration provision is illegal under the NLRA. This is an important case to watch next Term.

Rule 23 Amendments: What Comes Next? (Scott Burnett Smith of Bradley Arant and Judge Robert M. Dow, Jr. of the Northern District of Illinois)

This conversation focused on the work of the Rule 23 subcommittee of the Judicial Conference Advisory Committee on Civil Rules on proposed amendments to Rule 23. Judge Dow chairs that subcommittee. The subcommittee has endeavored to prioritize transparency and take input from a broad range of interested judges, lawyers and academics. The subcommittee elected not to move forward with proposals that were more substantive or where court of appeals’ decisions were in conflict and the Supreme Court potentially may weigh in. This included cy pres relief in settlements, issue classes, and ascertainability. The proposed amendments that if ultimately approved will go into effect in December of 2018 appear to be relatively uncontroversial. The amendments would provide more detail regarding what must be provided to a district court with a motion for preliminary approval of a class settlement; expressly permit electronic notice to class members (which is already taking place); insert into the rule criteria for approval of class settlements consistent with existing law (with no intent to override existing law); expressly require that objections to class settlements be made with specificity;  and require that any payment to an objector or the objector’s counsel be approved by the district judge. Judge Dow noted that the subcommittee has not been disbanded and it may consider other proposals in coming years.

Class Action Settlements (Tristan Duncan of Shook Hardy)

Tristan Duncan explained how the class action settlements that courts are finding the most problematic involve trifling issues, such as arguments for trivial additions to disclosures regarding corporate transactions.  Settlements of such cases fail to provide any real value for class members, only attorneys’ fees for class counsel. Similar “trifling” cases that have been dismissed involved the size of eye drops purportedly being too large and wasteful, and the amount of lip balm that cannot be accessed in a container.

Recent Developments in TCPA Class Actions (Christine Reilly of Manatt Phelps and Christine Brandt of Macy’s)

This session covered the latest developments in Telephone Consumer Protection Act (TCPA) cases. The D.C. Circuit’s long-awaited decision in ACA International v. FCC is expected to address important issues about what constitutes an automatic telephone dialing system, the meaning of “called party” (whether it means a current subscriber or intended recipient) and revocation of consent.  Courts have not been particularly well-receptive to arguments under Spokeo of a lack of injury or harm under the TCPA. The FCC is anticipated to become more business friendly under new chairman Ajit Pai. A newly emerging issue is whether a voice broadcast (where your phone does not ring but you have a voicemail) is subject to the TCPA.

Ethics (Matthew Berkowitz of Carr Maloney)

This session covered, among other topics, ethical issues regarding communications with putative class members (generally permitted in most jurisdictions, as long as counsel clearly states their role and makes no misrepresentations), potential settlements with putative class members, limitations on what class counsel can agree to as part of a settlement, and cy pres settlements where an attorney has a relationship with a cy pres beneficiary.

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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.