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Local Controversy Exception to Class Action Fairness Act Addressed By Fourth Circuit

By Wystan Ackerman & Wystan Ackerman on December 31, 2013
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One of the exceptions to federal jurisdiction under the Class Action Fairness Act (“CAFA”) is known as the “local controversy exception.”  It requires a federal district court to decline to exercise jurisdiction where more than two-thirds of the proposed class members are citizens of the state where suit was filed, the principal injuries occurred in that state, and at least one defendant is a citizen of that state, and is a defendant from whom members of the class are seeking “significant relief,” and whose alleged conduct “forms a significant basis” for the proposed class’s claims.  In addition, the exception applies only if no other similar class action was filed against any of the defendants in the past three years. 

This exception is rarely a point of contention in insurance class actions.  If the insurer is sued in its home state in a statewide class action, CAFA jurisdiction generally does not exist.  The “local controversy” exception tends to come into play when multiple insurers are sued in one case, or where other in-state defendants (such as insurance agents or insurance adjusters) are added to a suit against an out-of-state insurer.  A new Fourth Circuit case presents one more potential area where the “local controversy” exception is likely to be litigated – where the plaintiff sues a defendant class of individuals, as well as a corporate defendant.

In Quicken Loans Inc. v. Alig, No. 12-342, 2013 U.S. App. LEXIS 25224 (4th Cir. Dec. 19, 2013), the plaintiffs alleged that Quicken Loans originated unlawful loans in West Virginia.  Suit was brought in a West Virginia state court, on behalf of a putative statewide class of West Virginia citizens, against Quicken Loans (an out-of-state defendant), as well as a defendant class of real estate appraisers who are citizens of West Virginia and performed appraisals for the loans at issue.  The district court granted the plaintiffs’ motion to remand based on the “local controversy” exception.  The Fourth Circuit granted interlocutory review, and vacated the remand order.

The only dispute was over whether there was at least one in-state defendant from which “significant relief” was sought, and whose alleged conduct formed a “significant basis” for the putative class claims.  The key issue the Fourth Circuit focused on was whether the putative class of defendant appraisers could be aggregated to determine whether the “local controversy” exception applied.  The Fourth Circuit held that no such aggregation was proper because the members of the uncertified defendant class were not parties:

[I]t was proper for the district court to aggregate the named defendant appraisers for purposes of the local controversy exception. But, the district court went further than that: it also combined the absent members of the putative class. Therein lies the problem. An unnamed member of a proposed but uncertified class is not a party to the litigation. Smith v. Bayer Corp., 131 S. Ct. 2368, 2379 (2011). Consequently, because the class of unnamed defendant appraisers is not a party to this lawsuit, it was improper for the district court to consider them in deciding whether Plaintiffs had satisfied the “at least 1 defendant” requisite of the local controversy exception.

As such, we are left with the question as to whether the named defendant appraisers—Appraisals Unlimited, Inc., Dewey V. Guida, and Richard Hyett—meet the “at least 1 defendant” portion of the local controversy exception. But, we are unable to make that determination on the record before us. Accordingly, we remand this action to the district court to make that decision.

Id. at *13.

So what does this mean for insurance class actions, where plaintiffs’ counsel attempts to invoke the “local controversy” exception by suing insurance agents, adjusters or auto appraisers as well as the company?  I see this decision as generally a good development for those types of cases, in addition to other arguments of fraudulent joinder that the insurer often has when there is no proper cause of action against the insurance agents or adjusters.

Photo of Wystan Ackerman Wystan Ackerman

Wystan Ackerman is a partner in Robinson+Cole’s Insurance + Reinsurance Group and handles a diverse range of property insurance litigation, including large business interruption cases, class actions, other complex litigation, and appeals. He also has substantial experience representing insurance companies in putative class…

Wystan Ackerman is a partner in Robinson+Cole’s Insurance + Reinsurance Group and handles a diverse range of property insurance litigation, including large business interruption cases, class actions, other complex litigation, and appeals. He also has substantial experience representing insurance companies in putative class actions involving homeowners’ insurance coverage and market conduct/claim-handling practices. He has been prominently involved in high-profile property insurance litigation concerning the September 11th catastrophe and Hurricane Katrina, and Chinese-made drywall. Based in the insurance capital of Hartford, Connecticut, Wystan writes the blog Insurance Class Actions Insider, which was selected by Lexis Nexis as a top insurance blog for 2011.

Wystan 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. He always had strong interests in history, politics and baseball and his heroes growing up were Abraham Lincoln and Wade Boggs (at that time the third baseman for the Boston Red Sox). Wystan says it was his early fascination with Lincoln that drove him to practice law. As a high school senior, he was one of Connecticut’s two delegates to the U.S. Senate Youth Program, which further solidified his interest in law and government. He went on to Bowdoin College, where he wrote for the Bowdoin Orient and majored in government. After Bowdoin, he went on to Columbia Law School. He also interned in the chambers of then-Judge Sonia Sotomayor on the Second Circuit. Wystan graduated from Columbia in 2001, then worked at Skadden Arps in Boston before returning to Connecticut and joining Robinson+Cole.

When Wystan’s not at his desk, flying around the country trying to save insurance companies from the plaintiffs’ bar, or attending a conference on class actions or insurance litigation he often can be found watching “Dora the Explorer” or reading or playing whiffleball with his young daughter, helping his wife with her business, Option Realty, reading a book about history or politics, or watching the Boston Red Sox.

Read Wystan’s rc.com bio.

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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.  Being in the insurance capital of Hartford, we have a national insurance litigation practice and most of the class actions I’ve defended have been brought against insurance companies. I’ve also handled some involving products liability, managed care, health care, utilities, financial services, higher education and environmental issues.

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 work, you might find me running lines or watching a musical with my teenage daughter who hopes to be a Broadway star (or taking her to voice or dance lessons) or reading a good book.

Read more about Wystan AckermanEmail
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  • Posted in:
    Class Action & Mass Torts
  • Blog:
    Class Actions Insider
  • Organization:
    Robinson & Cole LLP
  • Article: View Original Source

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