Federal courts of appeals have disagreed on whether a named plaintiff in a proposed class action can sue defendants who have not injured that plaintiff but allegedly have injured putative class members. This is not an uncommon scenario. Plaintiffs often attempt to bring putative class actions that are broader than their own claims, suing defendants
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.
Second Circuit Casts Doubt on Named Plaintiff Service Awards And Leaves Enforceability of Future Release For Another Day
Last week the Second Circuit issued a new decision affirming, with one exception, the approval of a $5.6 billion revised class action settlement in the long-running Visa/Mastercard antitrust litigation. (See my blog post on the Second Circuit’s reversal of a prior settlement in 2016.) The opinion and two concurrences in Fikes Wholesale, Inc. v. HSBC…
Ninth Circuit Reiterates That Individualized Defenses Matter When Deciding Class Certification
A recent Ninth Circuit decision illustrates how defendants can use evidence on an individualized defense to potentially defeat class certification.
In Van v. LLR, Inc., — F.4th –, 2023 WL 2469909 (9th Cir. Mar. 13, 2023), the defendant allegedly charged sales tax that was not owed by Alaska purchasers on online purchases. While the…
Rules Enabling Act Key to New Ninth Circuit Decision on Class Certification
A sometimes-overlooked aspect of class action law is how class certification rules interact with the Rules Enabling Act, which provides that rules of procedure and evidence “shall not abridge, enlarge or modify any substantive right.” 28 U.S.C. § 2072(b). Some class actions attempt to use the class action device to evade obstacles to obtaining individual…
Fifth Circuit Upholds Striking of Class Allegations Based on Differences in State Law and Multiple Alleged Misrepresentations
One of the first significant class certification-related decisions of 2023 comes from the Fifth Circuit. While some trial courts hesitate to strike class action allegations on the pleadings, the district court here concluded very early in the case that it was clearly inappropriate for class certification. The Fifth Circuit agreed, in a published opinion that…
First Circuit Rejects Class Action Settlement Based on Potential Intra-class Conflict, But Approves Named Plaintiff Incentive Awards
When negotiating a class action settlement, lawyers on both sides may need to consider whether subgroups within the class need to be separately represented by different counsel. The First Circuit recently reached that conclusion in Murray v. Grocery Delivery E-Services USA Inc., 2022 WL 17729630 (1st Cir. Dec. 16, 2022).
Murray involved three different…
Ninth Circuit Addresses Class Representative Incentive Awards and Attestation Requirement
A recent Ninth Circuit decision on a class action settlement, In re Apple Inc. Device Performance Litigation, 2022 WL 4492078 (9th Cir. Sept. 28, 2022), received significant attention in the legal media. It addressed several issues of significance to lawyers negotiating class settlements: (1) class representative incentive awards; (2) a requirement that class members…
Class Definition in Class Action Settlement Must Be Limited to Class Members That Have Standing According to Eleventh Circuit
Last week the Eleventh Circuit addressed an issue that many class action practitioners probably haven’t thought much about: whether approval of a class action settlement requires that each class member obtaining relief have Article III standing to sue. Defendants typically want a broad class definition because they are focused on finality and buying peace. Plaintiffs…
Ninth Circuit Reverses Class Certification Order Because Liability Issues, Not Merely Damages, Were Individualized
The Ninth Circuit recently addressed an issue that tends to arise frequently in class certification motion practice: how trial courts should apply the predominance requirement where appellate decisions have said that the need to calculate individualized damages generally is not sufficient on its own to defeat class certification, but some putative class members likely have…
Third Circuit Maintains a Strict Approach to Numerosity and Highlights Circuit Split on Application of Evidentiary Rules to Class Certification Decisions
I used to say that denials of class certification on numerosity grounds were rare and that usually it was futile to oppose class certification on that ground. That’s becoming less true as some circuits, including the Third Circuit, have adopted a stricter approach to how plaintiffs must establish numerosity. If Plaintiffs are using an estimate…