With Judge Brett Kavanaugh’s nomination to the Supreme Court, one question to ask is whether, if he is confirmed, that will move the Court to any degree in class action cases. Unfortunately, we don’t have much to look at. The D.C. Circuit, with its small geographic footprint, is not a hotbed of class action filings. I could not find any opinion written, or even joined by Judge Kavanaugh, that squarely reviewed a class certification decision. But a few insights might be gleaned from the following three cases:

  • In re District of Columbia, 792 F.3d 96 (D.C. Cir. 2015): Here, Judge Kavanaugh was the presiding judge on the panel but assigned the opinion to Judge Wilkins. The court denied the District of Columbia’s petition for permission to appeal the district court’s order certifying a class. The plaintiffs alleged that the District failed to provide adequate community-based care for Medicare beneficiaries requiring long-term care. In denying permission to appeal, the court held that the District had failed to satisfy the D.C. Circuit’s criteria for granting Rule 23(f) review where the only argument made by the District was that the district court’s decision was “manifestly erroneous.” The court of appeals made clear that the “manifest error” standard was a “high bar,” the court was not deciding the merits of the class certification issues, and it had serious doubts about the district court’s decision. The central question (not decided) was whether there was “a policy or practice affecting all members of the class in the manner Wal-Mart requires for certification.” at 100. I don’t think this case suggests that Judge Kavanaugh would be reluctant to grant certiorari on class action issues, given the nature of the case and the limited basis on which the District sought review.
  • Mills v. Giant of Md., LLC, 508 F.3d 11 (D.C. Cir. 2007): Judge Kavanaugh wrote this opinion about a year after he joined the D.C. Circuit. It was a class action in which the plaintiffs claimed that sellers of milk should be required to put warning labels on containers advising consumers that some people are lactose intolerant. The court of appeals affirmed the district court’s dismissal of the case on the grounds that District of Columbia tort law did not protect against such a “widely known” risk. Judge Kavanaugh explained that “[a] bout of gas or indigestion does not justify a race to the courthouse,” “30 to 50 million Americans suffer from some level of lactose intolerance,” “products targeted to lactose-intolerant individuals are now commonplace,” and “the problem of lactose intolerance has received an extraordinary amount of attention in the media and in the medical community.” He wrote a short opinion, noting that “[w]e will not belabor the obvious.” The outcome here is not remarkable. The opinion suggests that Judge Kavanaugh is unlikely to use the more colorful language than Justices Scalia or Kagan might use in deciding such a case.
  • Cohen v. United States, 650 F.3d 717 (D.C. Cir. 2011): This is an en banc decision in which Judge Kavanaugh wrote a dissenting opinion. It involved a class action in which the plaintiffs challenged the sufficiency of a refund procedure created by the IRS to refund excessive taxes collected on long-distance telephone calls (remember those days when long-distance calls were more expensive?). The majority opinion focused on jurisdictional issues and the Administrative Procedure Act, concluding that the plaintiffs could pursue their suit without having to file refund claims or individual tax refund suits. Judge Kavanaugh wrote a dissent that focused on how the refund procedure was relatively simple, and the plaintiffs could have filed refund claims or brought individual tax refund suits. He wrote that: “Plaintiffs’ ultimate objectives are class certification and a court order that the U.S. Government pay billions of dollars in additional refunds to millions of as-yet-unnamed individuals who never sought refunds from the IRS or filed tax refund suits. It seems that plaintiffs have deliberately avoided filing individual refund claims with the IRS and filing tax refund suits because they think they have a better chance of obtaining class certification if they don’t take those steps. And class certification is a necessary prerequisite to the class-wide jackpot plaintiffs are seeking here.” at 737 (Kavanaugh, J., dissenting). Judge Kavanaugh and the judges who joined his opinion would have held that individual tax refund suits would be an adequate forum for plaintiffs to pursue their claims. This opinion seems to demonstrate that Judge Kavanaugh has a good handle on the reality and practicalities of modern class action litigation and might be persuaded, at least in some circumstances, that under the superiority requirement for certification under Rule 23(b)(3), individual suits and/or a voluntary refund process are a superior means of resolving class claims.

Overall, we have few data points to draw from, but I found no reason to think that a Justice Kavanaugh would consistently vote differently in class action cases as compared with Justice Kennedy.

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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.