When class certification is denied because the named plaintiff’s claim fails for some reason, sometimes an absent class member will try to intervene rather than filing their own separate suit. Their goal is usually to attempt to certify a class for a longer time period than would otherwise be possible.  If the new plaintiff files a new suit, the statute of limitations period for the proposed class claims would be shorter than if they join a suit that was pending for years. The Sixth Circuit recently addressed this issue, holding that the proposed intervenor could not demonstrate that his rights would be impaired without intervention because he could bring his own separate suit.

Grainger v. Ottawa County, – F.4th –, 2024 WL 64093 (6th Cir. Jan. 5, 2024), is one of various cases seeking to recover against counties or municipalities that foreclosed on properties for nonpayment of taxes and then kept proceeds exceeding the amount owed. (For more background, see my blog post on another Sixth Circuit case involving this issue and the juridical link doctrine.) The district court denied class certification under the Supreme Court’s decision in China Agritech, Inc. v. Resh, 138 S. Ct. 1800 (2018) (see my blog post). Under that decision, the named plaintiff (Grainger) could rely on the pendency of an earlier class action to toll the statute of limitations on his individual claims, but Grainger could not “piggyback” on that earlier class action to bring another class action where, absent class action tolling, his individual claims would have been untimely. Three days later, a new proposed plaintiff (Behovitz) who had a timely claim because his foreclosure proceeding was more recent in time, moved to intervene in Grainger’s case. For various reasons, the district court denied both intervention as of right and permissive intervention.

The Sixth Circuit affirmed, focusing on two of the four requirements for intervention: (1) whether Behovitz had a “substantial interest” in the subject matter of the case; and (2) whether his ability to protect his interest may be impaired without intervention. Behovitz argued that he had a substantial interest in seeking to pursue class claims. The Sixth Circuit concluded that this “likely does not” constitute a sufficient interest to warrant intervention after denial of class certification, noting that “carrying Behovitz’s argument to its logical endpoint could result in ‘multiple bites at the certification apple’ for class counsel” in a manner that seemed improper, but the court declined to decide the case on that basis. Instead, the Sixth Circuit ruled based on the impairment requirement, holding that Behovitz could not demonstrate impairment because he was entitled to bring his own separate suit, which would be timely, and could allege class claims (albeit for a shorter time period). To the extent Behovitz was concerned about a class action settlement that had been approved in another case, his remedy was to appeal that decision or opt out.

The Sixth Circuit also held that the district court did not abuse its discretion in denying permissive intervention. Allowing intervention would further delay the case and potentially require adding more plaintiffs who had properties in other counties, or relitigating issues about whether Behovitz could represent putative class members in counties where his property was not located.

Grainger may aid defendants in seeking to fend off or narrow the scope of successive class actions.

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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.