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Comcast, Superiority, Predominance and Injunctive Relief Addressed in Recent Second Circuit Class Certification Opinions

By Wystan Ackerman & Wystan Ackerman on February 20, 2015
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The Second Circuit recently addressed a panoply of class certification issues in two opinions. Both decisions ruled in favor of the plaintiffs, but will help defendants tailor their arguments in future cases.

Roach v. T.L. Cannon Group, No. 13-3070-cv, 2015 U.S. App. LEXIS 2054 (2d Cir. Feb. 10, 2015) addressed whether the Supreme Court’s decision in Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013) overruled Second Circuit law regarding the impact of individualized damages issues on a class certification analysis under Rule 23(b)(3). This was an employment case in which the district court had denied certification on the sole ground that the plaintiffs did not offer a model for proving damages on a classwide basis. The Second Circuit vacated this decision and remanded. It explained that “Comcast held that a model for determining classwide damages relied upon to certify a class under Rule 23(b)(3) must actually measure damages that result from the class’s asserted theory of injury; but the Court did not hold that proponents of class certification must rely upon a classwide damages model to demonstrate predominance.” Id. at *14. The Second Circuit further explained that, “[t]o be sure, Comcast reiterated that damages questions should be considered at the certification stage, when weighing predominance issues,” but “[t]he Supreme Court did not foreclose the possibility of class certification under Rule 23(b)(3) in cases involving individualized damages calculations.” Id. at *15-16. The court concluded that this interpretation of Comcast was consistent with that of other circuits. Id. at *16-17.

What does this mean for defendants? There is no question that individualized damages remain a relevant factor and in some cases will be a very important factor in the class certification analysis. When damages are individualized, that often means that causation or other issues relevant to liability are similarly individualized. A more “totality of the circumstances” approach melding various individualized issues may be most effective.

Sykes v. Mel S. Harris and Assocs. LLC, No. 13-2742-cv, 2015 U.S. App. LEXIS 2057 (2d Cir. Feb. 10, 2015) is a lengthy opinion involving an alleged debt collection scheme whereby the defendants would obtain default judgments in New York City Civil Court by executing false affidavits of service and affidavits of merit. Issues of potentially broader significance were:

Predominance: The defendants argued that individualized issues existed with respect to damages, the statute of limitations, and whether service of process was made properly. The Second Circuit majority held that individualized issues of damages would not defeat predominance because the amount of money obtained by defendants would be information in defendants’ possession and the damages sought were tied to the theory of liability. The majority further concluded that the applicability of the statute of limitations would not present a problem because the plaintiffs disclaimed reliance on equitable tolling (although this would defeat some of the named plaintiffs’ individual claims). The majority found the causation issue would not defeat some of plaintiffs’ claims (including a FDCPA claim), and was not sufficient to defeat predominance. The dissent concluded that individualized issues regarding service of process would predominate, and that the statute of limitations issue would either require individualized inquiries or render the named plaintiffs inadequate and atypical because they relied on equitable tolling.

Superiority: There was an interesting debate between the majority and dissent with respect to whether a state court procedure would be superior to a class action. The defendants argued that a New York state court procedure that would allow for fraudulently obtained default judgments to be vacated en masse would be superior to a class action. The Second Circuit majority disagreed because the New York City Civil Court would not have jurisdiction to hear a class action, the superiority analysis does not properly compare federal to state court fora, and the New York state court procedure would have to be initiated by an administrative judge, and would not allow the plaintiffs to pursue a right of action or control the litigation. Judge Jacobs’ dissent concluded that the state court procedure would be “broad, wholesale, effective, and easy,” and “[t]he only remaining salient advantage of this federal class action is attorneys’ fees, which do not much help the members of the class.” Id. at *76 (Jacobs, J., dissenting).

Rule 23(b)(2): The majority concluded that the proposed injunctive relief (requiring defendants to correct their practices in the future) would benefit the entire class. While the named plaintiffs’ default judgments had been vacated, the majority concluded (without explanation) that they might still be subject to further action by the defendants. The dissent concluded that certification under Rule 23(b)(2) was improper because the named plaintiffs would not benefit, and any suggestion of potential future suits and default judgments by the defendant was mere speculation.

This is a case that defendants will argue should be limited to its facts, which involved serious allegations of fraud to which the district court appeared to give significant credit. The nature of the FDCPA claim was critical to the court’s analysis and would not extend to other contexts where causation would have to be determined individually. The superiority ruling may not be particularly problematic because it is rare that defendants would prefer a state court forum. The Rule 23(b)(2) analysis lacks thoroughness and may not withstand scrutiny in future opinions.

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:
    Employment & Labor
  • Blog:
    Class Actions Insider
  • Organization:
    Robinson & Cole LLP
  • Article: View Original Source

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