The Ninth Circuit’s decision this week vacating a class action settlement in In re Hyundai and Kia Fuel Economy Litig., No. 15-65014 (9th Cir. Jan. 23, 2018) is getting a lot of attention in the class action bar. It’s 84 pages long, but the bottom line is that the Ninth Circuit held that the district court failed to analyze whether differences in state law precluded a finding that common questions of law and fact predominated under Rule 23(b)(3). That’s an argument that defendants often make in opposing class certification, and courts often agree with it. In fact, the trial court in this case when a motion for class certification was under consideration strongly suggested that this argument would carry the day. But the parties later settled and agreed to certification, and the Ninth Circuit majority criticized the district court for sidestepping the issue in the settlement approval process. This is because the basic requirements for class certification under Rule 23(a) and (b) must be satisfied for settlement purposes under the Supreme Court’s decision in Amchem Prods., Inc. v. Windsor, except that factors such as manageability do not apply where the case is being settled, not tried. This is nothing new, but parties and district courts sometimes do not give sufficient attention to this in the settlement process.

Some commentators have suggested that this decision could endanger nationwide class action settlements in cases governed by state law (it’s not a problem where federal law applies). Defendants sometimes need to enter into a nationwide settlement to achieve complete peace, such as in this MDL proceeding involving alleged misrepresentations as to the fuel economy of Hyundai and Kia vehicles. Entering into 50 separate statewide settlements would be impractical.

So what can parties do when they want to settle but the issues are governed by state law that in some respects varies among the 50 states? Here are a couple of thoughts:

  • If you need to do a Rule 23(b)(3) settlement, find at least one plausibly common and predominating issue on which state law does not vary and make that your focus in seeking approval of the settlement. The defendant does not have to affirmatively sign onto the argument that predominance is satisfied based on that issue; it can just not oppose the plaintiff’s motion. Defenses should not be an issue because it is a settlement, and thus the defendant is effectively waiving its individualized defenses if the settlement is approved.
  • Consider whether you can seek certification of a settlement class under Rule 23(b)(2) if the settlement includes some declaratory or injunctive relief and the monetary relief goes hand-in-hand with the declaratory or injunctive relief. Rule 23(b)(2) does not require a showing of predominance. If the class receives notice and has the opportunity to opt out, some of the concerns about the propriety of a Rule 23(b)(2) class may fall by the wayside.
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.