Liability insurers are sometimes faced with a difficult scenario: Their insured has been sued in a class action with potentially large stakes. The insurer believes they have no duty to defend and a denial of coverage is appropriate. But the result of declining to defend the insured is likely to be a “collusive” class action … Continue Reading
I’ve been delayed a bit in reporting on this, but the October 2015 term of the U.S. Supreme Court is shaping up to be a blockbuster one for class action law. Perhaps even bigger than the October 2010 term, which brought us Wal-Mart v. Dukes, Smith v. Bayer Corp. and AT&T v. Concepcion. I previously … Continue Reading
The U.S. Supreme Court recently granted certiorari in Spokeo, Inc. v. Robins, No. 13-1339 (SCOTUSblog page), to decide whether a plaintiff who does not suffer any injury has Article III standing to sue for violation of a federal statute. The case will not be argued until the next Supreme Court Term, likely in October. It … Continue Reading
The Third Circuit recently joined the Seventh, Eighth, and Ninth Circuits in holding that, where a Daubert challenge is made to the use of expert testimony in support of class certification, the Daubert challenge must be resolved at that stage. The Third Circuit explained that “[e]xpert testimony that is insufficiently reliable to satisfy the Daubert … Continue Reading
One of the “hot” issues in class actions today is whether, or to what extent, a class can be defined to include members who were not injured, and do not have standing to sue. The First Circuit recently addressed this in a 2-1 decision, concluding that “class certification is permissible even if the class includes … Continue Reading
As 2014 comes to a close, here are a few observations on key trends I’ve seen in insurance class actions (and class actions more broadly) over the last year: Changes in the law have frequently led to new class action filings. Most insurers are large organizations, and changing daily practice across a claim or underwriting … Continue Reading
Following the Supreme Court’s decision in Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013), lawyers have debated whether a defendant can defeat a class action by offering full relief to the named plaintiff(s), either before a class is certified, or before a motion for class certification is filed. Last week, the Eleventh Circuit … Continue Reading
A recent decision of the Texas Court of Appeals in Austin (Third District) caught my eye. Not because it involved insurance; rather, it was a securities class action challenging a board of directors’ approval of a corporate transaction. See Brigham Exploration Co. v. Boytim, No. 03-13-00191-CV, 2014 Tex. App. LEXIS 9068 (Tex. Ct. App. – … Continue Reading
Back in February of 2012, I wrote a blog post about a California Court of Appeal decision addressing the use of statistical sampling in class actions. The California Supreme Court recently granted review and affirmed the Court of Appeal’s decision that the trial court improperly allowed the case to be tried based on statistical evidence … Continue Reading
Insurers and other corporations defending against putative class actions often struggle with how to try to achieve an early resolution of a putative class action, and thereby reduce legal expense, when the case is not appropriate for resolution on a motion to dismiss, or a motion to dismiss is denied. One approach is to move … Continue Reading
Commentators have questioned whether, after the Supreme Court’s decision last year in Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013), a defendant could, by making a settlement offer or offer of judgment on a named plaintiff’s claim, render the case moot and prevent the certification of a class. The Seventh Circuit has now … Continue Reading
As we near the end of the year, from what I have seen in monitoring new class action filings against the insurance industry, a main focus of the plaintiffs’ bar in 2013 has been on what might broadly be characterized as compliance issues. In most cases, this involves an allegation that the insurer’s claim or … Continue Reading
A recent Ninth Circuit decision addresses a question left open by the Supreme Court’s decision this year in Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013): Does an offer of full relief to the plaintiff under Fed. R. Civ. P. 68, which is not accepted by the plaintiff, render a case moot? The … Continue Reading
Recently there has been a fair amount of activity by the insurance departments in New York, New Jersey and Connecticut regarding setting up mediation programs for Superstorm Sandy claims. These programs typically require insurers to offer mediation to policyholders on certain claims, participate in the mediation in good faith, and pay all or part of … Continue Reading
In some putative class actions, the defendant seeks dismissal of the complaint on the grounds that the named plaintiff lacks standing to sue. Where the case has been removed to federal court, however, one possible outcome of such a motion is an order remanding the case back to state court. This may not be what … Continue Reading
One strategy defendants often consider at the outset of a class action is filing a motion to strike the class allegations based on the pleadings. Such a motion challenges whether the case as pled could ever be certified as a class action, similar to a Rule 12(b)(6) motion to dismiss for failure to state a … Continue Reading
My fellow class action blogger Paul Karlsgodt did a great post last week on “Voluntary Refund Programs as a Class Action Defense Strategy.” Paul discusses an article recently published by law professor Eric Voigt on the use of voluntary refund programs to prevent and defend against class actions. If you have a very good memory … Continue Reading
I recently was elected as a new member of the Federation of Defense and Corporate Counsel (FDCC) and last week I attended my first annual meeting of that organization. One of the presentations was by two former senior military officers from Afterburner, a consulting company that teaches businesses and professionals how they can potentially use … Continue Reading
The Seventh Circuit recently addressed an interesting issue regarding the types of appeals permitted by Rule 23(f). In Matz v. Household International Tax Reduction Investment Plan, No. 12-8010, 2012 U.S. App. LEXIS 14771 (7th Cir. July 19, 2012), the district court had modified a previously-certified class to eliminate between 57% and 71% of the class … Continue Reading
Several years ago, legal commentators wrote extensively about the U.S. Supreme Court’s decisions in Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), which revised the standard for a motion to dismiss under Fed. R. Civ. P. 12(b)(6). Commentators have debated the extent to which these decisions … Continue Reading
Where a named plaintiff’s insurance policy was issued by an insurance company that is part of a group of insurance companies that share the same parent company, can the named plaintiff bring a putative class action only against the company that dealt with and allegedly injured her, or can she sue the entire group of … Continue Reading
Fred Krebs of the Association of Corporate Counsel’s In-House Access blog published an interesting recent post on “Dealing with the Media.” His blog post has some great pointers about what it means to speak with the media “on background,” keeping answers short, remembering that discussions with PR people within the company might not be privileged, … Continue Reading
An April 17 article by Jennifer Smith on the Wall Street Journal Law Blog is getting quite a bit of attention. It discusses a survey by the Carlton Fields law firm, concluding that companies expect to see more class action filings in 2012, but to spend less money defending them. She writes: How, might you … Continue Reading
After the U.S. Supreme Court heard lengthy oral arguments on Obamacare this week, it’s hard for me to resist saying something about it on this blog. The issues before the Court, although they involve health insurance, for the most part have little to do with insurance law or anything that would impact insurance class actions. … Continue Reading
