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Wystan Ackerman focuses his practice on three main areas: class actions, appeals, and insurance coverage litigation.

Class Actions

Wystan chairs our firm's Class Action team and is the editor of our firm's Class Actions Insider blog. He has a national class action defense practice. Over more than twenty years, Wystan has been involved in defending more than 130 class actions in over 20 jurisdictions. In many of those cases, he prevailed on a dispositive motion.

Wystan successfully petitioned the United States Supreme Court to grant certiorari and was co-counsel on the merits in Standard Fire Insurance Company v. Knowles, 568 U.S. 588 (2013), in which the Court rejected a plaintiff's attempt to evade federal jurisdiction by stipulating that the amount sought would not exceed the $5 million threshold under the Class Action Fairness Act.

Wystan has defended putative class action cases involving insurance and financial services, products liability, environmental issues, employment, data breaches, healthcare, managed care, higher education, consumer contracts, Internet tracking, and securities. He has extensive experience defending major insurers in putative class actions involving homeowners' insurance, auto insurance, underwriting and business practices, and also advises insurers regarding the defense of their insureds in class actions. He has handled insurance class actions involving, for example, the COVID-19 pandemic, general contractor overhead and profit, labor depreciation, automobile total losses, diminished value, PIP coverage, and various other issues. He is a past chair of the Class Action and Multidistrict Section of the Federation of Defense and Corporate Counsel (FDCC), and a past chair of the Class Action Special Litigation Group of the Commercial Litigation Committee of the Defense Research Institute (DRI).

Appeals

Wystan also has a national appellate practice, mainly focused on insurance. He has been involved in over 160 appeals, including appeals in every regional federal circuit, as well as in state supreme and/or appellate courts in 19 states, and the U.S. Supreme Court. He is retained for trial monitoring as appellate counsel in cases involving large exposures or where an appeal is anticipated. He regularly represents national insurance industry associations as amici curiae in appellate and supreme courts. Wystan has been involved, as either counsel for the insurer or for an amicus curiae, in many of the most significant insurance coverage-related appeals over the last twenty years. Wystan has chaired the Appellate Section of the Federation of Defense and Corporate Counsel (FDCC) and has served on the pro bono panel of the U.S. Court of Appeals for the Second Circuit.

Insurance Coverage Litigation

Wystan also has extensive experience litigating and advising insurers on coverage issues. His coverage practice is national in scope. High-profile coverage cases he has litigated include cases involving flood exclusion and Valued Policy Law issues arising from Hurricane Katrina, Chinese-made drywall, Superstorm Sandy, the cracking foundation litigation in Connecticut, and the COVID-19 pandemic.

Recognitions

Wystan received a Band 1 ranking in Chambers USA: America's Leading Lawyers for Business in the State of Connecticut in the area of Insurance for 2026. According to Chambers, clients praise Wystan's appellate advocacy, strategic insight, and ability to handle complex, high-stakes matters:

  • "Wystan is one of the nation's leading appellate advocates for the insurance industry."
  • "Wystan Ackerman is a very strong appellate attorney. He is able to succinctly express what our positions are in a persuasive manner."
  • "Wystan is a[s] close as you can come to a savant. If you put him up against the best appellate lawyers in any federal circuit or US supreme court, I'd pick him. His strategy on trial cases is amazing."
  • "Wystan Ackerman handles high-exposure appeals in Connecticut and around the country. He has a very sophisticated practice and is a very, very strong lawyer."

Wystan also has been listed as a Second Circuit Litigation Star in Benchmark Appellate (2013) and is listed as a litigation star in Benchmark Litigation (2013-2025). He was selected by his peers for inclusion in Hartford, CT – Best Lawyers® for 2023-2025 in the area of Litigation-Insurance. Wystan also has been selected to the Connecticut Super Lawyers list from 2015 to 2025, and was selected as a Rising Star in Connecticut Super Lawyers from 2009 to 2014. In addition, he was named a JD Supra Readers' Choice Awards Top Author in the Class Action category for 2018, 2023 and 2025.

Wystan serves as our firm's Professional Development Partner.

  • Columbia Law School (Juris Doctor, Moot Court)
    • James Kent Scholar
    • Law Review (Notes Editor)
  • Bowdoin College (Bachelors, summa cum laude)
    • B.A., Government

  • Commonwealth of Massachusetts
  • State of Connecticut
  • State of New York
  • U.S. Supreme Court
  • U.S. Court of Appeals, 1st Circuit
  • U.S. Court of Appeals, 2nd Circuit
  • U.S. Court of Appeals, 3rd Circuit
  • U.S. Court of Appeals, 4th Circuit
  • U.S. Court of Appeals, 5th Circuit
  • U.S. Court of Appeals, 6th Circuit
  • U.S. Court of Appeals, 7th Circuit
  • U.S. Court of Appeals, 8th Circuit
  • U.S. Court of Appeals, 9th Circuit
  • U.S. Court of Appeals, 10th Circuit
  • U.S. Court of Appeals, 11th Circuit
  • U.S. District Court, District of Colorado
  • U.S. District Court, District of Connecticut
  • U.S. District Court, Northern District of Florida
  • U.S. District Court, District of Massachusetts
  • U.S. District Court, Eastern District of Michigan
  • U.S. District Court, Eastern District of New York
  • U.S. District Court, Northern District of New York
  • U.S. District Court, Southern District of New York
  • U.S. District Court, Western District of New York
  • U.S. District Court, Western District of Wisconsin

Received a Band 1 ranking in Chambers USA: America's Leading Lawyers for Business in the State of Connecticut in the area of Insurance for 2026

Listed in Benchmark Litigation as a Local Litigation Star for Connecticut in the area of Insurance since 2015

Listed as a Future Star in Benchmark Litigation for 2013 and 2014

Listed as a Second Circuit Litigation Star in Connecticut in Benchmark Appellate, 2013

AV® Preeminent™ Peer Review Rated in Martindale-Hubbell™ (Martindale-Hubbell Peer Review Ratings is a trademark. AV Preeminent is a certification mark of Reed Elsevier Properties, Inc.)

Selected to the Connecticut Super Lawyers list from 2015 to 2025

Selected as a Rising Star in the Connecticut Super Lawyers list from 2009 to 2014

2025, 2023 and 2018 JD Supra Readers' Choice Awards Top Author in the Class Action category

Connecticut Law Tribune, recognized in 2012 New Leaders in the Law Yearbook

Selected by his peers for inclusion in The Best Lawyers in America© in the area of Litigation-Insurance since 2023

Federation of Defense and Corporate Counsel
Chair, Amicus and Public Policy Committee
Chair, Class Action/MDL Section
Past Chair, Appellate Section

Connecticut Bar Association
Insurance Law Section, Executive Committee

Connecticut Bar Foundation
James W. Cooper Fellow (2017 - Current)

Town of Berlin
Past Chair, Board of Ethics (2013 - Past)
Member, Commission for Persons with Disabilities

Experience


Secured Victory Clarifying PIP Coverage Before Massachusetts Appeals Court

Represented a major insurer in successfully defending a Massachusetts Appeals Court appeal confirming that personal injury protection (PIP) coverage requires actual physical contact with a vehicle. Court unanimously agreed that “struck” does not include “near miss” incidents, rejected the plaintiff’s reliance on out-of-state cases, distinguished a Massachusetts Supreme Judicial Court decision, and emphasized that expanding PIP coverage beyond the statutory text is a matter for the legislature. Outcome provided important guidance for insurers and policyholders on PIP coverage. A petition for further appellate review is pending in the Supreme Judicial Court.

Read More
Secured Victory Clarifying PIP Coverage Before Massachusetts Appeals Court

Appellate: COVID-19 Business Interruption Claim – Eighth Circuit

Briefed and argued appeal in the U.S. Court of Appeals for the Eighth Circuit involving claim by a municipality under a policy providing coverage for loss of sales tax revenue in specified circumstances. The court agreed with our client’s position and affirmed the trial court’s declaratory judgment that the policy provisions were not ambiguous or in conflict, and that there was no coverage without direct physical loss or damage to property at the relevant locations.

Read More

Insurance Coverage Litigation: Hurricane Katrina Commercial Property Case

Member of trial team for $100 million Hurricane Katrina commercial property case. First Hurricane Katrina case the client insurance company allowed before a New Orleans jury. Tried to verdict and settled on appeal for less than 2 percent of the claim.

Read More


Publications


Federal Appellate Jurisdiction in Insurance Declaratory Judgment Actions Addressed by Eleventh Circuit teaser
June 1, 2026

Federal Appellate Jurisdiction in Insurance Declaratory Judgment Actions Addressed by Eleventh Circuit

Covering Appeals
Wisconsin Court of Appeals Addresses Potential Gap in Coverage for Delivery Driver teaser
June 1, 2026

Wisconsin Court of Appeals Addresses Potential Gap in Coverage for Delivery Driver

Covering Appeals
Missouri Court of Appeals Finds No Duty to Defend or Indemnify in Class Action Involving Environmental Contamination Beginning in the 1960s teaser
November 10, 2025

Missouri Court of Appeals Finds No Duty to Defend or Indemnify in Class Action Involving Environmental Contamination Beginning in the 1960s

Covering Appeals
Federal Appellate Jurisdiction in Insurance Declaratory Judgment Actions Addressed by Eleventh Circuit teaser
June 1, 2026

Federal Appellate Jurisdiction in Insurance Declaratory Judgment Actions Addressed by Eleventh Circuit

Covering Appeals
Wisconsin Court of Appeals Addresses Potential Gap in Coverage for Delivery Driver teaser
June 1, 2026

Wisconsin Court of Appeals Addresses Potential Gap in Coverage for Delivery Driver

Covering Appeals
Missouri Court of Appeals Finds No Duty to Defend or Indemnify in Class Action Involving Environmental Contamination Beginning in the 1960s teaser
November 10, 2025

Missouri Court of Appeals Finds No Duty to Defend or Indemnify in Class Action Involving Environmental Contamination Beginning in the 1960s

Covering Appeals
COVID-19 Business Interruption Cases Reach the End of the Road, with Mixed Results teaser
September 2, 2025

COVID-19 Business Interruption Cases Reach the End of the Road, with Mixed Results

Covering Appeals
Welcome to Robinson+Cole’s “Covering Appeals” Blog teaser
September 2, 2025

Welcome to Robinson+Cole’s “Covering Appeals” Blog

Covering Appeals
Hawai’i Supreme Court Applies Pollution Exclusion in CGL Case Involving Climate Change teaser
August 29, 2025

Hawai’i Supreme Court Applies Pollution Exclusion in CGL Case Involving Climate Change

Covering Appeals
Data Privacy + Cybersecurity Insider teaser
March 6, 2025

Data Privacy + Cybersecurity Insider

Spring 2022

Certification of Legal Questions to State Courts

Of Note column of Practical Law The Journal

Many states allow federal courts to certify a question to the state’s highest court when faced with a significant but unsettled question of state law, which affords the benefits of upholding principles of comity and increasing efficiency in the judicial process. However, while certification empowers those courts to provide an authoritative ruling on key state law issues, it is neither appropriate nor advantageous to seek certification in every case. In the Q&A-format article, Wystan explains the certification process, highlighting the procedure and practical considerations for parties seeking to obtain or prevent certification, and addresses the standard federal courts typically apply when considering an application to certify question to a state court, and the types of questions that are most – and least – appropriate for certification. View the article.

April 13, 2015

The Next Big Wave of Insurance Class Actions

Law360

In the article, Mr. Ackerman discusses whether an insurer may apply depreciation to the labor component of the replacement cost estimate. Specifically, he examines the labor depreciation issue, recent decisions, and the next moves. View the article.



COVID-19 Business Interruption Cases Reach the End of the Road, with Mixed Results teaser
September 2, 2025

COVID-19 Business Interruption Cases Reach the End of the Road, with Mixed Results

Covering Appeals
Welcome to Robinson+Cole’s “Covering Appeals” Blog teaser
September 2, 2025

Welcome to Robinson+Cole’s “Covering Appeals” Blog

Covering Appeals
Hawai’i Supreme Court Applies Pollution Exclusion in CGL Case Involving Climate Change teaser
August 29, 2025

Hawai’i Supreme Court Applies Pollution Exclusion in CGL Case Involving Climate Change

Covering Appeals
Data Privacy + Cybersecurity Insider teaser
March 6, 2025

Data Privacy + Cybersecurity Insider

Spring 2022

Certification of Legal Questions to State Courts

Of Note column of Practical Law The Journal

Many states allow federal courts to certify a question to the state’s highest court when faced with a significant but unsettled question of state law, which affords the benefits of upholding principles of comity and increasing efficiency in the judicial process. However, while certification empowers those courts to provide an authoritative ruling on key state law issues, it is neither appropriate nor advantageous to seek certification in every case. In the Q&A-format article, Wystan explains the certification process, highlighting the procedure and practical considerations for parties seeking to obtain or prevent certification, and addresses the standard federal courts typically apply when considering an application to certify question to a state court, and the types of questions that are most – and least – appropriate for certification. View the article.

April 13, 2015

The Next Big Wave of Insurance Class Actions

Law360

In the article, Mr. Ackerman discusses whether an insurer may apply depreciation to the labor component of the replacement cost estimate. Specifically, he examines the labor depreciation issue, recent decisions, and the next moves. View the article.


News


June 17, 2026

Wystan Ackerman Quoted on ERISA Litigation Landscape

Insurance Appeals partner Wystan Ackerman was quoted in a Bloomberg Law article titled, “Genworth 401(k) Class Defeat Disrupts ERISA Litigation Landscape,” published on June 11, 2026. The article covers the US Court of Appeals for the Fourth Circuit reaffirming its previous decision to block Genworth Financial employees from banding together as a certified class to challenge the BlackRock Inc. target-date funds in their 401(k) retirement plans. The court found that investment-loss claims in defined contribution plans were inherently individualized, preventing participants from proceeding as a group. “Cases that depend on individual workers’ investment choices could be vulnerable to the Genworth opinion’s reasoning,” said Wystan, highlighting the decision’s plausible impact on class certification lawsuits moving forward . “If the allegations are focused on something like a fee that’s charged to all participants in essentially the same amount, that would be more susceptible to class certification than something that depends on people’s choices.” Wystan said. Read the article, here.

Bloomberg Law
June 4, 2026

Robinson+Cole Recognized Across Practices and Regions with 46 Chambers USA 2026 Rankings

Chambers & Partners
Robinson+Cole Recognized Across Practices and Regions with 46 Chambers USA 2026 Rankings teaser
January 16, 2026

Insurance Appeals Team Achieves Key Victory on PIP Coverage Before Massachusetts Appeals Court

June 17, 2026

Wystan Ackerman Quoted on ERISA Litigation Landscape

Insurance Appeals partner Wystan Ackerman was quoted in a Bloomberg Law article titled, “Genworth 401(k) Class Defeat Disrupts ERISA Litigation Landscape,” published on June 11, 2026. The article covers the US Court of Appeals for the Fourth Circuit reaffirming its previous decision to block Genworth Financial employees from banding together as a certified class to challenge the BlackRock Inc. target-date funds in their 401(k) retirement plans. The court found that investment-loss claims in defined contribution plans were inherently individualized, preventing participants from proceeding as a group. “Cases that depend on individual workers’ investment choices could be vulnerable to the Genworth opinion’s reasoning,” said Wystan, highlighting the decision’s plausible impact on class certification lawsuits moving forward . “If the allegations are focused on something like a fee that’s charged to all participants in essentially the same amount, that would be more susceptible to class certification than something that depends on people’s choices.” Wystan said. Read the article, here.

Bloomberg Law
June 4, 2026

Robinson+Cole Recognized Across Practices and Regions with 46 Chambers USA 2026 Rankings

Chambers & Partners
Robinson+Cole Recognized Across Practices and Regions with 46 Chambers USA 2026 Rankings teaser
January 16, 2026

Insurance Appeals Team Achieves Key Victory on PIP Coverage Before Massachusetts Appeals Court

November 6, 2025

Robinson+Cole Commends 62 Attorneys Recognized in 2025 Super Lawyers®

Recognition spans key regions and highlights the firm’s seasoned practitioners and emerging leaders in many business transactions and litigation practices
Robinson+Cole Commends 62 Attorneys Recognized in 2025 <i>Super Lawyers</i>® teaser
September 3, 2025

Robinson+Cole Insurance Practice Launches Latest Blog, Covering Appeals

New resource expands firm’s industry insights, unpacking the latest, high-impact insurance coverage appellate cases and trends
Robinson+Cole Insurance Practice Launches Latest Blog, <i>Covering Appeals</i> teaser
August 26, 2025

78 Robinson+Cole Lawyers Listed in The Best Lawyers in America© 2026

Firm receives top listing in Connecticut lawyer count in national peer review survey
78 Robinson+Cole Lawyers Listed in The Best Lawyers in America© 2026 teaser
July 31, 2025

Wystan Ackerman Appointed Chair of FDCC’s Amicus and Public Policy Committee

Federation of Defense & Corporate Counsel
March 7, 2025

Wystan Ackerman Recognized as a “Top Author”

2025 JD Supra Readers' Choice Awards
Wystan Ackerman Recognized as a “Top Author” teaser
October 31, 2024

Robinson+Cole Lawyers Recognized in 2024 Super Lawyers®

Thomson Reuters
Robinson+Cole Lawyers Recognized in 2024 <i>Super Lawyers</i>® teaser

November 6, 2025

Robinson+Cole Commends 62 Attorneys Recognized in 2025 Super Lawyers®

Recognition spans key regions and highlights the firm’s seasoned practitioners and emerging leaders in many business transactions and litigation practices
Robinson+Cole Commends 62 Attorneys Recognized in 2025 <i>Super Lawyers</i>® teaser
September 3, 2025

Robinson+Cole Insurance Practice Launches Latest Blog, Covering Appeals

New resource expands firm’s industry insights, unpacking the latest, high-impact insurance coverage appellate cases and trends
Robinson+Cole Insurance Practice Launches Latest Blog, <i>Covering Appeals</i> teaser
August 26, 2025

78 Robinson+Cole Lawyers Listed in The Best Lawyers in America© 2026

Firm receives top listing in Connecticut lawyer count in national peer review survey
78 Robinson+Cole Lawyers Listed in The Best Lawyers in America© 2026 teaser
July 31, 2025

Wystan Ackerman Appointed Chair of FDCC’s Amicus and Public Policy Committee

Federation of Defense & Corporate Counsel
March 7, 2025

Wystan Ackerman Recognized as a “Top Author”

2025 JD Supra Readers' Choice Awards
Wystan Ackerman Recognized as a “Top Author” teaser
October 31, 2024

Robinson+Cole Lawyers Recognized in 2024 Super Lawyers®

Thomson Reuters
Robinson+Cole Lawyers Recognized in 2024 <i>Super Lawyers</i>® teaser

Events


Past

Insuring Climate Change

May 14 2026
CBA Insurance Law Section Meeting
Past

Coverage-Related Class Actions and MDLs: Recent Developments and What is on the Horizon

Nov 10 2023
Federation of Defense & Corporate Counsel’s (FDCC) Insurance Industry Institute (I-3)
Past

Insuring Climate Change

May 14 2026
CBA Insurance Law Section Meeting
Past

Coverage-Related Class Actions and MDLs: Recent Developments and What is on the Horizon

Nov 10 2023
Federation of Defense & Corporate Counsel’s (FDCC) Insurance Industry Institute (I-3)
Past

Current Trends in Consumer Class Action Litigation

Apr 26 2022
Perrin Conferences Class Action Litigation Conference
Past

Defending Class Actions Using Absent Class Member Discovery

Dec 9 2021
Strafford CLE webinar
Past

Coronavirus Business Interruption Insurance Class Action Lawsuits: Coverage and Certification Issues

May 21 2020
Perrin Conferences
Past

Business Interruption Insurance Coverage and the COVID-19 Crisis: An Examination

Mar 26 2020
R+C-Hosted Webinar
Past

Current Trends in Consumer Class Action Litigation

Apr 26 2022
Perrin Conferences Class Action Litigation Conference
Past

Defending Class Actions Using Absent Class Member Discovery

Dec 9 2021
Strafford CLE webinar
Past

Coronavirus Business Interruption Insurance Class Action Lawsuits: Coverage and Certification Issues

May 21 2020
Perrin Conferences
Past

Business Interruption Insurance Coverage and the COVID-19 Crisis: An Examination

Mar 26 2020
R+C-Hosted Webinar

Class Action Insider


Below is an excerpt of the Class Action Insider posts authored by Wystan.

Sixth Circuit, Sitting En Banc, Rejects Class Certification in Auto Insurance Total Loss Case

En banc class-certification decisions are rare, which makes the Sixth Circuit’s  decision in Clippinger v. State Farm Automobile Insurance Company, No. 24-5421, — F.4th —, 2026 WL 1113480 (6th Cir. Apr. 24, 2026) (en banc), especially notable. The case was one of a series of cases nationwide brought against various insurers involving automobile insurance claims for vehicles deemed to be a total loss. The issue was whether a plaintiff could obtain certification under Federal Rule Civil Procedure 23(b)(3) by challenging a “typical negotiation adjustment” (TNA)—a downward adjustment applied to advertised prices of comparable vehicles to account for expected negotiation—while otherwise accepting State Farm’s total-loss valuation methodology.  The Sixth Circuit en banc said no, on a 10-7 vote. It overturned a prior three-judge panel opinion and brought itself into line with the Third, Fourth, Fifth, Seventh, and Ninth Circuits, all of which have rejected certification in similar negotiation-adjustment cases. Significantly, the majority discussed a couple of issues I’ve harped on in prior blog posts—that it is often useful for defendants to focus on how they would try the named plaintiff’s and other individual class members’ cases, and the potential significance of the Rules Enabling Act. The Issue and Basic Facts State Farm’s Tennessee policy promised to pay the “actual cash value” (ACV) of a totaled vehicle, with disagreements to be resolved by agreement or, if necessary, binding appraisal (a form of contractual alternative dispute resolution in which a three-member panel is empowered to reach a binding decision on vehicle valuation). State Farm used Audatex Autosource Reports that relied on pricing for comparable vehicles and, when using advertised prices, applied a TNA to estimate negotiated sale prices. Clippinger challenged only that adjustment, alleging that it artificially lowered ACV, even though she otherwise agreed to State Farm’s valuation.  On Clippinger’s own claim, State Farm initially paid $14,490 based on the Autosource Report, and Clippinger agreed to that amount but later sued. After she sued, State Farm invoked appraisal. State Farm’s chosen appraiser valued the vehicle at $14,432 and the other two appraisers ultimately fixed the value at $18,476, which was binding under the policy and resulted in an additional payment of more than $4,000, well above the disputed TNA. Nevertheless, Clippinger proceeded with the lower-value class claim based on the TNA, also asserting that she was forced to pay appraisal fees (which the policy provided for) and the district court allowed the case to continue and ultimately certified a class. Why the Majority Reversed The majority focused on the policy language, explaining that “the insurance policy shows that State Farm promised just one thing: to pay each class member the ‘actual cash value’ of the class member’s totaled vehicle.” Importantly, “no language in the policy prevented State Farm from using a typical-negotiation adjustment when calculating an amount to start the negotiations over the fair market value of the customer’s totaled car.” This meant the proposed common question did not actually resolve whether there was a breach of contract. As the court put it, “The question whether a breach occurred will instead depend on a different inquiry: comparing what State Farm paid a class member to the fair market value of the class member’s car.”  And because fair market value turns on vehicle-specific facts such as “the year, make and model, mileage, options, and the overall condition of the vehicle,” individualized issues would predominate. The class claims would require “mini trials” for each class member and a jury could reach a result that would be based on other valuation evidence and have nothing to do with the TNA.  The Rules Enabling Act Problem The district court tried to avoid those individualized inquiries by accepting a formula that would simply rerun each Autosource Report without the TNA. The majority held that this would violate the Rules Enabling Act, under which the Rules of Civil Procedure, including the class action rule, cannot alter substantive rights. Here, the majority held that the district court’s approach would strip State Farm of its right to defend itself with individualized valuation evidence and with the individual appraisal process the policy allowed.  The majority explained that Rule 23 cannot be used to eliminate State Farm’s substantive right to present “unique evidence that it paid fair market value to a specific class member despite its use of the adjustment.”  It also emphasized that the district court’s model would harm some absent class members, because some vehicles may have been undervalued by more than the TNA alone.  Clippinger’s own case made the point: her TNA was only in the hundreds of dollars, but the binding appraisal came in about $4,000 higher than the original valuation.  Hicks The majority distinguished Hicks v. State Farm Fire & Casualty Co., 965 F.3d 452 (6th Cir. 2020), although the rationale would have justified overruling that panel decision.  There, the issue was actual cash value determinations under homeowners’ insurance policies. The Sixth Circuit had held that in determining actual cash value, labor costs could not be depreciated. In affirming class certification, the court held that Kentucky law treated an insurer’s overestimate “as an error in the insured’s favor” that the insurer could not later depart from in litigation. Here, by contrast, the majority concluded that “Clippinger may not rely on Tennessee law to avoid the need for individual inquiries in the way that Hicks relied on Kentucky law,” and “State Farm thus has the ‘substantive right’ to present individual evidence concerning the value of each class member’s car that it lacked in Hicks.” Concurrence Judge Bush’s concurrence went further and suggested that the case might well have been resolved based on the binding appraisal outcome for the named plaintiff alone.  Judge Bush reasoned that the policy defines ACV as either the amount agreed by the parties or the amount fixed by appraisal, and Clippinger received both: “Whether viewed through the lens of estoppel or appraisal, Clippinger has received the ACV of her car. It also should end her individual lawsuit.” The majority did not disagree with this, it just chose to decide the appeal on the other grounds. Judge Bush also discussed how, in his view, class certification should be inappropriate when many class members lack Article III standing (although he did not believe that was the case here). Dissent   The dissent concluded that the TNA issue was the central common liability question, and “Plaintiffs’ claims live and die on this common contention.” The dissent found Hicks applicable, and rejected the Rules Enabling Act concern, reasoning that State Farm could still present individualized valuation evidence in later damages proceedings, even if that required thousands of them. The dissent ignored that the individualized evidence on some claims would defeat liability, not just damages. Takeaways From a defense perspective, the key point is straightforward: a plaintiff cannot properly obtain certification simply by isolating one issue and asking the court to ignore the individualized inquiry that determines whether there was a breach of contract. And when certification depends on barring the defendant from presenting individualized valuation evidence or invoking contractual rights, the Rules Enabling Act should be front and center.  En banc class-certification decisions are rare, which makes the Sixth Circuit’s  decision in Clippinger v. State Farm Automobile Insurance Company, No. 24-5421, — F.4th —, 2026 WL 1113480 (6th Cir. Apr. 24, 2026) (en banc), especially notable. The case was one of a series of cases nationwide brought against various insurers involving automobile insurance claims for vehicles deemed to be a total loss. The issue was whether a plaintiff could obtain certification under Federal Rule Civil Procedure 23(b)(3) by challenging a “typical negotiation adjustment” (TNA)—a downward adjustment applied to advertised prices of comparable vehicles to account for expected negotiation—while otherwise accepting State Farm’s total-loss valuation methodology.  The Sixth Circuit en banc said no, on a 10-7 vote. It overturned a prior three-judge panel opinion and brought itself into line with the Third, Fourth, Fifth, Seventh, and Ninth Circuits, all of which have rejected certification in similar negotiation-adjustment cases. Significantly, the majority discussed a couple of issues I’ve harped on in prior blog posts—that it is often useful for defendants to focus on how they would try the named plaintiff’s and other individual class members’ cases, and the potential significance of the Rules Enabling Act. The Issue and Basic Facts State Farm’s Tennessee policy promised to pay the “actual cash value” (ACV) of a totaled vehicle, with disagreements to be resolved by agreement or, if necessary, binding appraisal (a form of contractual alternative dispute resolution in which a three-member panel is empowered to reach a binding decision on vehicle valuation). State Farm used Audatex Autosource Reports that relied on pricing for comparable vehicles and, when using advertised prices, applied a TNA to estimate negotiated sale prices. Clippinger challenged only that adjustment, alleging that it artificially lowered ACV, even though she otherwise agreed to State Farm’s valuation.  On Clippinger’s own claim, State Farm initially paid $14,490 based on the Autosource Report, and Clippinger agreed to that amount but later sued. After she sued, State Farm invoked appraisal. State Farm’s chosen appraiser valued the vehicle at $14,432 and the other two appraisers ultimately fixed the value at $18,476, which was binding under the policy and resulted in an additional payment of more than $4,000, well above the disputed TNA. Nevertheless, Clippinger proceeded with the lower-value class claim based on the TNA, also asserting that she was forced to pay appraisal fees (which the policy provided for) and the district court allowed the case to continue and ultimately certified a class. Why the Majority Reversed The majority focused on the policy language, explaining that “the insurance policy shows that State Farm promised just one thing: to pay each class member the ‘actual cash value’ of the class member’s totaled vehicle.” Importantly, “no language in the policy prevented State Farm from using a typical-negotiation adjustment when calculating an amount to start the negotiations over the fair market value of the customer’s totaled car.” This meant the proposed common question did not actually resolve whether there was a breach of contract. As the court put it, “The question whether a breach occurred will instead depend on a different inquiry: comparing what State Farm paid a class member to the fair market value of the class member’s car.”  And because fair market value turns on vehicle-specific facts such as “the year, make and model, mileage, options, and the overall condition of the vehicle,” individualized issues would predominate. The class claims would require “mini trials” for each class member and a jury could reach a result that would be based on other valuation evidence and have nothing to do with the TNA.  The Rules Enabling Act Problem The district court tried to avoid those individualized inquiries by accepting a formula that would simply rerun each Autosource Report without the TNA. The majority held that this would violate the Rules Enabling Act, under which the Rules of Civil Procedure, including the class action rule, cannot alter substantive rights. Here, the majority held that the district court’s approach would strip State Farm of its right to defend itself with individualized valuation evidence and with the individual appraisal process the policy allowed.  The majority explained that Rule 23 cannot be used to eliminate State Farm’s substantive right to present “unique evidence that it paid fair market value to a specific class member despite its use of the adjustment.”  It also emphasized that the district court’s model would harm some absent class members, because some vehicles may have been undervalued by more than the TNA alone.  Clippinger’s own case made the point: her TNA was only in the hundreds of dollars, but the binding appraisal came in about $4,000 higher than the original valuation.  Hicks The majority distinguished Hicks v. State Farm Fire & Casualty Co., 965 F.3d 452 (6th Cir. 2020), although the rationale would have justified overruling that panel decision.  There, the issue was actual cash value determinations under homeowners’ insurance policies. The Sixth Circuit had held that in determining actual cash value, labor costs could not be depreciated. In affirming class certification, the court held that Kentucky law treated an insurer’s overestimate “as an error in the insured’s favor” that the insurer could not later depart from in litigation. Here, by contrast, the majority concluded that “Clippinger may not rely on Tennessee law to avoid the need for individual inquiries in the way that Hicks relied on Kentucky law,” and “State Farm thus has the ‘substantive right’ to present individual evidence concerning the value of each class member’s car that it lacked in Hicks.” Concurrence Judge Bush’s concurrence went further and suggested that the case might well have been resolved based on the binding appraisal outcome for the named plaintiff alone.  Judge Bush reasoned that the policy defines ACV as either the amount agreed by the parties or the amount fixed by appraisal, and Clippinger received both: “Whether viewed through the lens of estoppel or appraisal, Clippinger has received the ACV of her car. It also should end her individual lawsuit.” The majority did not disagree with this, it just chose to decide the appeal on the other grounds. Judge Bush also discussed how, in his view, class certification should be inappropriate when many class members lack Article III standing (although he did not believe that was the case here). Dissent   The dissent concluded that the TNA issue was the central common liability question, and “Plaintiffs’ claims live and die on this common contention.” The dissent found Hicks applicable, and rejected the Rules Enabling Act concern, reasoning that State Farm could still present individualized valuation evidence in later damages proceedings, even if that required thousands of them. The dissent ignored that the individualized evidence on some claims would defeat liability, not just damages. Takeaways From a defense perspective, the key point is straightforward: a plaintiff cannot properly obtain certification simply by isolating one issue and asking the court to ignore the individualized inquiry that determines whether there was a breach of contract. And when certification depends on barring the defendant from presenting individualized valuation evidence or invoking contractual rights, the Rules Enabling Act should be front and center. 

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New Fourth Circuit Decision Addresses Mandatory (No Opt-Out) Classes and Commonality

While the U.S. Court of Appeals for the Fourth Circuit’s recent class action decision in Trauernicht v. Genworth Financial Inc., No. 24-1880, – F.4th –, 2026 WL 667917 (4th Cir. Mar. 10, 2026), involves an ERISA retirement plan, the decision is useful well beyond that context. The decision highlights that: (1) mandatory (no opt-out) classes are improper for individualized monetary claims; and (2) the commonality requirement is not satisfied by broad labels or generalized theories, particularly where the proposed class includes people who were not harmed. In Trauernicht, two former employees sued Genworth Financial as sponsor of a defined contribution retirement plan, commonly called a 401(k) plan. The plaintiffs alleged fiduciary breaches in selecting and retaining BlackRock LifePath Index Funds as part of the plan, claiming they were imprudent investment options. The district court certified a mandatory class under Federal Rule of Civil Procedure 23(b)(1) comprised of plan participants and beneficiaries whose accounts were invested in the BlackRock funds during the class period. The district court focused on the nature of the claim under section 502(a)(2) of the Employee Retirement Income Security Act (ERISA), concluding that, because the claim was “derivative” on behalf of the plan and recovery would go to the plan as a whole, the claim inherently presented common issues. On appeal, the Fourth Circuit reversed, holding that (1) the damages claims were “individualized monetary claims” and therefore could not be forced into a mandatory Rule 23(b)(1) class, particularly given the lack of opt-out and notice requirements, and (2) the district court erred in treating ERISA fiduciary-duty claims as “inherently” satisfying commonality. Takeaway 1: If it’s really about money, mandatory classes cannot be certified Rule 23(b)(1) classes are “mandatory”: class members generally have no opt-out right, and the rule does not require notice, which is required for a damages class under Rule 23(b)(3). The Fourth Circuit focused on the Supreme Court’s guidance in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) that “individualized monetary claims belong in Rule 23(b)(3),” precisely because (b)(3) includes required procedural safeguards of notice and opt-out rights. The court also emphasized the constitutional due process problem when absent class members’ monetary rights are resolved without notice and opt-out. Takeaway 2: “Representative” labels don’t eliminate individualized injury and remedy questions ERISA allows a plan participant to sue derivatively on behalf of the plan for a breach of fiduciary that causes losses to the plan. The district court relied heavily on the “derivative” nature of these claims to justify mandatory certification, reasoning that damages “flow to the class in bulk” rather than to individuals. The Fourth Circuit disagreed, focusing on remedy mechanics in a defined contribution plan: plan assets are allocated to individual accounts, and recovery for a fiduciary breach that impaired a participant’s account would be allocated to the participant’s account based on that account’s losses. That makes the claim functionally an individualized monetary claim in this context. The court distinguished defined contribution plans from defined benefit plans in this respect. Outside ERISA, the same type of issue can also be decisive. Under this decision, courts need to look past how the cause of action is labeled and consider what has to be proven and how relief would actually be calculated and distributed. If liability or damages turn on individualized circumstances (such as timing, reliance, exposure, mitigation, and offsets), mandatory aggregation becomes much harder to justify. Takeaway 3: Overinclusive classes with uninjured members are an important certification vulnerability Genworth Financial argued that many class members suffered no injury. The Fourth Circuit’s opinion suggests that as much as 42% of class members may have fared better in the challenged funds than in other passively managed comparator funds, although this would depend on when they bought and sold particular funds. The Fourth Circuit cited authority recognizing that overinclusive classes can fail commonality because those members do not share the “same injury.” The district court postponed deciding the parties’ dispute about the appropriate comparator funds “at this juncture,” relying instead on its view that ERISA § 502(a)(2) claims are inherently common in nature. The Fourth Circuit found that to be error, concluding that the district court must do the rigorous commonality analysis and resolve the dispute at certification. These points matter far beyond retirement plans. Defendants often need to focus on: whether the class definition sweeps in uninjured people; whether the plaintiffs’ theory has a reliable classwide method to separate injured from uninjured class members without mini-trials; and whether injury is truly “the same,” not just a shared allegation that a statute was violated. Bottom line Trauernicht is a reminder that class certification requires a rigorous, case-specific showing—and cannot be assumed based on the type of claim. Defendants are likely to rely on this case for (1) why mandatory classes cannot be certified for individualized money claims, (2) why commonality cannot be presumed based on the cause of action alleged or how it is pled, (3) why uninjured class members matter, and (4) why courts must confront key disputes at the certification stage rather than deferring them. While the U.S. Court of Appeals for the Fourth Circuit’s recent class action decision in Trauernicht v. Genworth Financial Inc., No. 24-1880, – F.4th –, 2026 WL 667917 (4th Cir. Mar. 10, 2026), involves an ERISA retirement plan, the decision is useful well beyond that context. The decision highlights that: (1) mandatory (no opt-out) classes are improper for individualized monetary claims; and (2) the commonality requirement is not satisfied by broad labels or generalized theories, particularly where the proposed class includes people who were not harmed. In Trauernicht, two former employees sued Genworth Financial as sponsor of a defined contribution retirement plan, commonly called a 401(k) plan. The plaintiffs alleged fiduciary breaches in selecting and retaining BlackRock LifePath Index Funds as part of the plan, claiming they were imprudent investment options. The district court certified a mandatory class under Federal Rule of Civil Procedure 23(b)(1) comprised of plan participants and beneficiaries whose accounts were invested in the BlackRock funds during the class period. The district court focused on the nature of the claim under section 502(a)(2) of the Employee Retirement Income Security Act (ERISA), concluding that, because the claim was “derivative” on behalf of the plan and recovery would go to the plan as a whole, the claim inherently presented common issues. On appeal, the Fourth Circuit reversed, holding that (1) the damages claims were “individualized monetary claims” and therefore could not be forced into a mandatory Rule 23(b)(1) class, particularly given the lack of opt-out and notice requirements, and (2) the district court erred in treating ERISA fiduciary-duty claims as “inherently” satisfying commonality. Takeaway 1: If it’s really about money, mandatory classes cannot be certified Rule 23(b)(1) classes are “mandatory”: class members generally have no opt-out right, and the rule does not require notice, which is required for a damages class under Rule 23(b)(3). The Fourth Circuit focused on the Supreme Court’s guidance in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) that “individualized monetary claims belong in Rule 23(b)(3),” precisely because (b)(3) includes required procedural safeguards of notice and opt-out rights. The court also emphasized the constitutional due process problem when absent class members’ monetary rights are resolved without notice and opt-out. Takeaway 2: “Representative” labels don’t eliminate individualized injury and remedy questions ERISA allows a plan participant to sue derivatively on behalf of the plan for a breach of fiduciary that causes losses to the plan. The district court relied heavily on the “derivative” nature of these claims to justify mandatory certification, reasoning that damages “flow to the class in bulk” rather than to individuals. The Fourth Circuit disagreed, focusing on remedy mechanics in a defined contribution plan: plan assets are allocated to individual accounts, and recovery for a fiduciary breach that impaired a participant’s account would be allocated to the participant’s account based on that account’s losses. That makes the claim functionally an individualized monetary claim in this context. The court distinguished defined contribution plans from defined benefit plans in this respect. Outside ERISA, the same type of issue can also be decisive. Under this decision, courts need to look past how the cause of action is labeled and consider what has to be proven and how relief would actually be calculated and distributed. If liability or damages turn on individualized circumstances (such as timing, reliance, exposure, mitigation, and offsets), mandatory aggregation becomes much harder to justify. Takeaway 3: Overinclusive classes with uninjured members are an important certification vulnerability Genworth Financial argued that many class members suffered no injury. The Fourth Circuit’s opinion suggests that as much as 42% of class members may have fared better in the challenged funds than in other passively managed comparator funds, although this would depend on when they bought and sold particular funds. The Fourth Circuit cited authority recognizing that overinclusive classes can fail commonality because those members do not share the “same injury.” The district court postponed deciding the parties’ dispute about the appropriate comparator funds “at this juncture,” relying instead on its view that ERISA § 502(a)(2) claims are inherently common in nature. The Fourth Circuit found that to be error, concluding that the district court must do the rigorous commonality analysis and resolve the dispute at certification. These points matter far beyond retirement plans. Defendants often need to focus on: whether the class definition sweeps in uninjured people; whether the plaintiffs’ theory has a reliable classwide method to separate injured from uninjured class members without mini-trials; and whether injury is truly “the same,” not just a shared allegation that a statute was violated. Bottom line Trauernicht is a reminder that class certification requires a rigorous, case-specific showing—and cannot be assumed based on the type of claim. Defendants are likely to rely on this case for (1) why mandatory classes cannot be certified for individualized money claims, (2) why commonality cannot be presumed based on the cause of action alleged or how it is pled, (3) why uninjured class members matter, and (4) why courts must confront key disputes at the certification stage rather than deferring them.

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Ninth Circuit Says Class Members Must Demonstrate Standing at Summary Judgment for Certified Damages Classes

A recent Ninth Circuit decision held that both named and unnamed class members in a class seeking monetary damages must come forward with sufficient evidence of Article III standing at the summary judgment stage—not merely at a later claims or distribution process. This gives defendants a powerful tool in defending class actions after they are certified and before trial. In Healy v. Milliman, Inc., – F.4th –, 2026 WL 71863 (9th Cir. Jan. 9, 2026), the case arose from alleged inaccuracies in Milliman’s consumer reports used by life insurers in underwriting. The named plaintiff, for example, alleged that he was denied life insurance based on a report that erroneously advised the life insurer that he had serious medical conditions. He brought a putative class action under the federal Fair Credit Reporting Act. The district court initially certified an “inaccuracy class,” defined (in part) by reports showing a mismatch between the applicant’s SSN and the SSN on a data source. Milliman then moved for partial summary judgment, arguing that this SSN-mismatch methodology could not establish classwide standing because it did not prove that the file contained mismatched health information. The Ninth Circuit had previously held that prior to class certification, only a named plaintiff has to demonstrate Article III standing (an issue that the Supreme Court has declined to address). In Healy, the Ninth Circuit held that the logic of the Supreme Court’s decision in TransUnion LLC v. Ramirez, 594 U.S. 413 (2021) requires unnamed members of a certified class seeking money damages to demonstrate standing at summary judgment. In TransUnion, the Court analyzed the trial record and determined that certain class members had standing and others did not, demonstrating that class member standing is a requirement at least at trial in a damages class action. Given this holding, the Ninth Circuit concluded that in responding to a summary judgment motion, the plaintiffs must demonstrate on behalf of unnamed class members at least a genuine dispute of material fact as to the requirements for standing. While the district court concluded that there was no direct, classwide evidence that the unnamed class members were injured, the Ninth Circuit concluded that standing potentially could be proven with circumstantial evidence, and remanded for the district court to decide whether the evidence was sufficient. Following this decision, defendants faced with certified class actions in circuits that do not require a showing of class member standing at the class certification stage are likely to raise this issue at summary judgment. Many class actions include class members who are uninjured or not likely to be able to establish an injury-in-fact. A successful challenge to standing at the summary judgment stage of the case can potentially substantially narrow the defendant’s exposure or lead to decertification of the class. A recent Ninth Circuit decision held that both named and unnamed class members in a class seeking monetary damages must come forward with sufficient evidence of Article III standing at the summary judgment stage—not merely at a later claims or distribution process. This gives defendants a powerful tool in defending class actions after they are certified and before trial. In Healy v. Milliman, Inc., – F.4th –, 2026 WL 71863 (9th Cir. Jan. 9, 2026), the case arose from alleged inaccuracies in Milliman’s consumer reports used by life insurers in underwriting. The named plaintiff, for example, alleged that he was denied life insurance based on a report that erroneously advised the life insurer that he had serious medical conditions. He brought a putative class action under the federal Fair Credit Reporting Act. The district court initially certified an “inaccuracy class,” defined (in part) by reports showing a mismatch between the applicant’s SSN and the SSN on a data source. Milliman then moved for partial summary judgment, arguing that this SSN-mismatch methodology could not establish classwide standing because it did not prove that the file contained mismatched health information. The Ninth Circuit had previously held that prior to class certification, only a named plaintiff has to demonstrate Article III standing (an issue that the Supreme Court has declined to address). In Healy, the Ninth Circuit held that the logic of the Supreme Court’s decision in TransUnion LLC v. Ramirez, 594 U.S. 413 (2021) requires unnamed members of a certified class seeking money damages to demonstrate standing at summary judgment. In TransUnion, the Court analyzed the trial record and determined that certain class members had standing and others did not, demonstrating that class member standing is a requirement at least at trial in a damages class action. Given this holding, the Ninth Circuit concluded that in responding to a summary judgment motion, the plaintiffs must demonstrate on behalf of unnamed class members at least a genuine dispute of material fact as to the requirements for standing. While the district court concluded that there was no direct, classwide evidence that the unnamed class members were injured, the Ninth Circuit concluded that standing potentially could be proven with circumstantial evidence, and remanded for the district court to decide whether the evidence was sufficient. Following this decision, defendants faced with certified class actions in circuits that do not require a showing of class member standing at the class certification stage are likely to raise this issue at summary judgment. Many class actions include class members who are uninjured or not likely to be able to establish an injury-in-fact. A successful challenge to standing at the summary judgment stage of the case can potentially substantially narrow the defendant’s exposure or lead to decertification of the class.

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Consumer Deception and Price Inflation Case: Eighth Circuit Reverses Class Certification Based on Individualized Issues

If,  like me, you grew up during (or otherwise lived through) the 1980s, you’ll recall the ever-present jingle “The best part of wakin’ up is Folgers in your cup” (and perhaps some creative modifications thereof by the children and teens of that era). My grandmother preferred Folgers, clipping coupons for it when available, and her kitchen usually smelled of coffee. Sometimes she made a full pot and on other occasions an individual cup. Had she lived to 104, I could have told her about this recent decision of the U.S. Court of Appeals for the Eighth Circuit involving allegations that Folgers misrepresented how many cups of coffee could be made per can. While the allegations here would not have passed my grandmother’s smell test, this case made it all the way to certification of a class that was reversed by the court of appeals. Allegations and the Certified Class The plaintiffs in In re Folgers Coffee Marketing, – F.4th –, 2025 WL 3292613 (8th Cir. Nov. 26, 2025), alleged that containers of Folgers coffee misleadingly stated the number of six-ounce cups that could be brewed, asserting that in practice consumers received fewer servings than advertised—allegedly 70% of the cups “promised” when using exclusively the “Single-Serving Method” as opposed to the “Pot Method” and following the instructions on the can precisely (without adjusting for your preferred strength). While that might have been a fourth-grade word problem in the 1980s, today you can probably take a picture of the can, upload it to your favorite AI app, and find the answer in the aisle of the grocery store. The district court certified a class of purchasers in Missouri which alleged violations of the Missouri Merchandising Practices Act (MMPA) and sought damages for unjust enrichment. The Eighth Circuit’s Reversal: Individual Issues Predominate               The Eighth Circuit reversed the class certification order, holding that the class was improperly certified because individual issues relating to causation and harm would overwhelm common questions. Under Rule 23(b)(3) of the Federal Rules of Civil Procedure, the predominance requirement ensures that common legal or factual issues must “predominate over any questions affecting only individual members.” The court explained that fraud-based and deception-based claims are generally ill-suited for class treatment when individual reliance or causation is in question. The court drew a critical distinction—even under the MMPA, which does not require traditional reliance (as some unfair trade practices statutes do), plaintiffs must still show a causal connection between the alleged deception and an ascertainable loss. Determining who was actually deceived would require consumer-by-consumer analysis. This was because many class members did not read or care about the cups-per-can statements, and others who read it would understand that “the promised number of cups could be achieved only some of the time under certain conditions,” and, of course, “some consumers prefer relatively weak cups of coffee.” As the Eighth Circuit explained, “[w]hat matters is that many class members weren’t deceived, and figuring out who was and who wasn’t will require consumer-by-consumer inquiries into each class member’s individual tastes, interpretations, and circumstances.” As one class member admitted when asked why she was still buying Folgers, “I like my coffee.” Rejecting the “Price Inflation” Theory In cases like this, plaintiffs’ lawyers often try to get around the need for demonstrating individualized reliance or causation by alleging an “overcharge” theory, asserting that all purchasers paid an artificially inflated price due to the representations—regardless of whether they personally relied on. or even noticed, them. The Eighth Circuit rejected this approach, finding it inconsistent with the statutory requirement of an “ascertainable loss” resulting directly from the alleged misconduct. The court warned that accepting this theory would improperly allow consumers who suffered no personal deception or loss to recover—a position contrary to recent appellate precedent and analogous rulings in other states, including New Jersey. Unjust Enrichment: Individual Circumstances Foreclose Class Treatment The court also refused to allow class certification for the unjust enrichment claims. Because “[w]hether a particular transaction might be considered inequitable or unjust turns on the specific circumstances of each transaction,” class treatment was inappropriate. This aligned with a general consensus that unjust enrichment claims are “generally inappropriate for class treatment.” Takeaways for Defending Similar Cases Many putative class actions allege misrepresentations in marketing products or services. While the applicable substantive law varies, the In re Folgers decision will be helpful to defendants when applicable law does not require reliance, or when a price-inflation (also called price premium) theory is alleged. It also illustrates how powerful individual testimony of class members can be, even if it just confirms what a court might accept as a matter of common sense. If,  like me, you grew up during (or otherwise lived through) the 1980s, you’ll recall the ever-present jingle “The best part of wakin’ up is Folgers in your cup” (and perhaps some creative modifications thereof by the children and teens of that era). My grandmother preferred Folgers, clipping coupons for it when available, and her kitchen usually smelled of coffee. Sometimes she made a full pot and on other occasions an individual cup. Had she lived to 104, I could have told her about this recent decision of the U.S. Court of Appeals for the Eighth Circuit involving allegations that Folgers misrepresented how many cups of coffee could be made per can. While the allegations here would not have passed my grandmother’s smell test, this case made it all the way to certification of a class that was reversed by the court of appeals. Allegations and the Certified Class The plaintiffs in In re Folgers Coffee Marketing, – F.4th –, 2025 WL 3292613 (8th Cir. Nov. 26, 2025), alleged that containers of Folgers coffee misleadingly stated the number of six-ounce cups that could be brewed, asserting that in practice consumers received fewer servings than advertised—allegedly 70% of the cups “promised” when using exclusively the “Single-Serving Method” as opposed to the “Pot Method” and following the instructions on the can precisely (without adjusting for your preferred strength). While that might have been a fourth-grade word problem in the 1980s, today you can probably take a picture of the can, upload it to your favorite AI app, and find the answer in the aisle of the grocery store. The district court certified a class of purchasers in Missouri which alleged violations of the Missouri Merchandising Practices Act (MMPA) and sought damages for unjust enrichment. The Eighth Circuit’s Reversal: Individual Issues Predominate               The Eighth Circuit reversed the class certification order, holding that the class was improperly certified because individual issues relating to causation and harm would overwhelm common questions. Under Rule 23(b)(3) of the Federal Rules of Civil Procedure, the predominance requirement ensures that common legal or factual issues must “predominate over any questions affecting only individual members.” The court explained that fraud-based and deception-based claims are generally ill-suited for class treatment when individual reliance or causation is in question. The court drew a critical distinction—even under the MMPA, which does not require traditional reliance (as some unfair trade practices statutes do), plaintiffs must still show a causal connection between the alleged deception and an ascertainable loss. Determining who was actually deceived would require consumer-by-consumer analysis. This was because many class members did not read or care about the cups-per-can statements, and others who read it would understand that “the promised number of cups could be achieved only some of the time under certain conditions,” and, of course, “some consumers prefer relatively weak cups of coffee.” As the Eighth Circuit explained, “[w]hat matters is that many class members weren’t deceived, and figuring out who was and who wasn’t will require consumer-by-consumer inquiries into each class member’s individual tastes, interpretations, and circumstances.” As one class member admitted when asked why she was still buying Folgers, “I like my coffee.” Rejecting the “Price Inflation” Theory In cases like this, plaintiffs’ lawyers often try to get around the need for demonstrating individualized reliance or causation by alleging an “overcharge” theory, asserting that all purchasers paid an artificially inflated price due to the representations—regardless of whether they personally relied on. or even noticed, them. The Eighth Circuit rejected this approach, finding it inconsistent with the statutory requirement of an “ascertainable loss” resulting directly from the alleged misconduct. The court warned that accepting this theory would improperly allow consumers who suffered no personal deception or loss to recover—a position contrary to recent appellate precedent and analogous rulings in other states, including New Jersey. Unjust Enrichment: Individual Circumstances Foreclose Class Treatment The court also refused to allow class certification for the unjust enrichment claims. Because “[w]hether a particular transaction might be considered inequitable or unjust turns on the specific circumstances of each transaction,” class treatment was inappropriate. This aligned with a general consensus that unjust enrichment claims are “generally inappropriate for class treatment.” Takeaways for Defending Similar Cases Many putative class actions allege misrepresentations in marketing products or services. While the applicable substantive law varies, the In re Folgers decision will be helpful to defendants when applicable law does not require reliance, or when a price-inflation (also called price premium) theory is alleged. It also illustrates how powerful individual testimony of class members can be, even if it just confirms what a court might accept as a matter of common sense.

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Ninth Circuit Says Post-Removal Amendment Deleting Class Allegations Destroys Federal Jurisdiction Under CAFA

When a class action is removed to federal court under the Class Action Fairness Act (CAFA), plaintiffs sometimes amend their pleadings to try to defeat federal jurisdiction. The recent U.S. Court of Appeals for the Ninth Circuit decision in Faulk v. JELD-WEN, Inc., 2025 WL 3183012 (9th Cir. Nov. 14, 2025), addresses how post-removal amendments affect federal jurisdiction, concluding that the Supreme Court’s decision in Royal Canin U.S.A., Inc. v. Wullschleger, 604 U.S. 22 (2025), required changing prior Ninth Circuit precedent. Under this new decision, if the complaint is amended to remove all class action allegations, the case must be remanded to state court unless there is an alternative basis for federal jurisdiction. The Case: Amending Away Federal Jurisdiction David and Bonnie Faulk, Alaska citizens, brought a class action in state court against Spenard Builders Supply (an Alaska corporation) and JELD-WEN (a Delaware corporation), alleging that windows they purchased were defective. The defendants removed the case to federal court under CAFA, which generally allows removal based on “minimal diversity” when any class member is a citizen of a different state than any defendant and the amount in controversy exceeds $5 million. After removal, the Faulks amended their complaint to remove all class action allegations, leaving only state-law claims. The district court, relying on prior Ninth Circuit precedent, denied their motion to remand, holding that jurisdiction is determined at the time of removal—even if the complaint is later amended to eliminate the class claims. The district court later addressed the merits and dismissed the complaint with prejudice. Background: Royal Canin and Its Impact on Federal Jurisdiction According to the Ninth Circuit, the Supreme Court’s decision in Royal Canin required altering prior Ninth Circuit precedent regarding which jurisdictional issues are evaluated based on time of removal and which issues can change when a complaint is amended. In Royal Canin, the defendant removed the case to federal court based on the original complaint including federal statutory claims and asserted supplemental jurisdiction under 28 U.S.C. § 1367 over the state law claims. The plaintiff amended the complaint post-removal to eliminate all federal claims, leaving only state-law causes of action. The Supreme Court held that when the basis for federal jurisdiction is excised by amendment in this manner, the plaintiff is the “master of the complaint” and the federal court loses subject matter jurisdiction over the remaining claims. In Faulk, the Ninth Circuit held that this rule applies where a plaintiff removes the class allegations in an amended complaint. Faulk overruled prior circuit precedent that had maintained that federal jurisdiction was based on the complaint at the time of removal, regardless of subsequent amendments. Important Exception: Amendments Do Not Affect Jurisdictional Facts Most plaintiffs who bring class actions do not seek to remove the class allegations in order to return to state court. More commonly plaintiffs will try to use amendments that alter the basis for CAFA jurisdiction in other ways, such as narrowing the class definition or attempting to reduce the amount in controversy below $5 million. While Royal Canin allows some amendments to divest a court of federal jurisdiction, there are important exceptions. One of these is that jurisdictional facts such as the citizenship of the parties and the amount in controversy are generally determined based on the original complaint at the time of removal, not affected by later amendments. This exception, discussed in footnotes in Faulk and Royal Canin, is rooted in the longstanding rule from St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283 (1938), which holds that an amendment reducing the amount in controversy below the statutory threshold will usually not destroy diversity jurisdiction. The Supreme Court in Royal Canin acknowledged this rule, stating that it was “inapposite” to the question presented, but reaffirmed its continued validity in cases where the amendment only affects the amount in controversy or the citizenship of the parties, rather than the substantive basis for federal jurisdiction. Practical Implications In most cases defendants would prefer that a plaintiff withdraw the class action allegations even if this results in a return to state court because there is no other ground for federal jurisdiction (such as if complete diversity is lacking or the named plaintiffs’ claims do not exceed $75,000). While under Faulk plaintiffs can amend their complaints to remove the class allegations and return to state court, under other rules that remain good law, plaintiffs cannot defeat federal jurisdiction by simply reducing the amount in controversy or altering party citizenship after removal. Whether, after Royal Canin, courts will allow amendments to class definitions to alter the CAFA jurisdictional analysis on issues other than citizenship or amount in controversy remains to be seen. When a class action is removed to federal court under the Class Action Fairness Act (CAFA), plaintiffs sometimes amend their pleadings to try to defeat federal jurisdiction. The recent U.S. Court of Appeals for the Ninth Circuit decision in Faulk v. JELD-WEN, Inc., 2025 WL 3183012 (9th Cir. Nov. 14, 2025), addresses how post-removal amendments affect federal jurisdiction, concluding that the Supreme Court’s decision in Royal Canin U.S.A., Inc. v. Wullschleger, 604 U.S. 22 (2025), required changing prior Ninth Circuit precedent. Under this new decision, if the complaint is amended to remove all class action allegations, the case must be remanded to state court unless there is an alternative basis for federal jurisdiction. The Case: Amending Away Federal Jurisdiction David and Bonnie Faulk, Alaska citizens, brought a class action in state court against Spenard Builders Supply (an Alaska corporation) and JELD-WEN (a Delaware corporation), alleging that windows they purchased were defective. The defendants removed the case to federal court under CAFA, which generally allows removal based on “minimal diversity” when any class member is a citizen of a different state than any defendant and the amount in controversy exceeds $5 million. After removal, the Faulks amended their complaint to remove all class action allegations, leaving only state-law claims. The district court, relying on prior Ninth Circuit precedent, denied their motion to remand, holding that jurisdiction is determined at the time of removal—even if the complaint is later amended to eliminate the class claims. The district court later addressed the merits and dismissed the complaint with prejudice. Background: Royal Canin and Its Impact on Federal Jurisdiction According to the Ninth Circuit, the Supreme Court’s decision in Royal Canin required altering prior Ninth Circuit precedent regarding which jurisdictional issues are evaluated based on time of removal and which issues can change when a complaint is amended. In Royal Canin, the defendant removed the case to federal court based on the original complaint including federal statutory claims and asserted supplemental jurisdiction under 28 U.S.C. § 1367 over the state law claims. The plaintiff amended the complaint post-removal to eliminate all federal claims, leaving only state-law causes of action. The Supreme Court held that when the basis for federal jurisdiction is excised by amendment in this manner, the plaintiff is the “master of the complaint” and the federal court loses subject matter jurisdiction over the remaining claims. In Faulk, the Ninth Circuit held that this rule applies where a plaintiff removes the class allegations in an amended complaint. Faulk overruled prior circuit precedent that had maintained that federal jurisdiction was based on the complaint at the time of removal, regardless of subsequent amendments. Important Exception: Amendments Do Not Affect Jurisdictional Facts Most plaintiffs who bring class actions do not seek to remove the class allegations in order to return to state court. More commonly plaintiffs will try to use amendments that alter the basis for CAFA jurisdiction in other ways, such as narrowing the class definition or attempting to reduce the amount in controversy below $5 million. While Royal Canin allows some amendments to divest a court of federal jurisdiction, there are important exceptions. One of these is that jurisdictional facts such as the citizenship of the parties and the amount in controversy are generally determined based on the original complaint at the time of removal, not affected by later amendments. This exception, discussed in footnotes in Faulk and Royal Canin, is rooted in the longstanding rule from St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283 (1938), which holds that an amendment reducing the amount in controversy below the statutory threshold will usually not destroy diversity jurisdiction. The Supreme Court in Royal Canin acknowledged this rule, stating that it was “inapposite” to the question presented, but reaffirmed its continued validity in cases where the amendment only affects the amount in controversy or the citizenship of the parties, rather than the substantive basis for federal jurisdiction. Practical Implications In most cases defendants would prefer that a plaintiff withdraw the class action allegations even if this results in a return to state court because there is no other ground for federal jurisdiction (such as if complete diversity is lacking or the named plaintiffs’ claims do not exceed $75,000). While under Faulk plaintiffs can amend their complaints to remove the class allegations and return to state court, under other rules that remain good law, plaintiffs cannot defeat federal jurisdiction by simply reducing the amount in controversy or altering party citizenship after removal. Whether, after Royal Canin, courts will allow amendments to class definitions to alter the CAFA jurisdictional analysis on issues other than citizenship or amount in controversy remains to be seen.

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Appeal Bonds: A Strategic Tool in Appeals of Class Action Settlements

When a class action settlement is objected to and subsequently approved by the court, objectors sometimes appeal, which can substantially delay the settlement process including distribution of settlement funds to class members. To mitigate the risks and costs of such delays, parties to the settlement can ask the court to require objectors to post an appeal bond. This was successful in a recent case decided by the U.S. Court of Appeals for the Sixth Circuit. In re East Palestine Train Derailment, – F.4th –, 2025 WL 3089606 (6th Cir. Nov. 5, 2025), involved a train derailment in Ohio resulting in the release of toxic chemicals. Property owners in the area brought a class action, and the railroad agreed to pay $600 million for a class settlement. Five class members objected, raising concerns about the notice and adequacy of evidence used to evaluate the settlement, and appealed the order approving the settlement. The settling parties requested, and the district court imposed, an appeal bond of $850,000 to cover anticipated administrative costs due to the delay caused by the appeal, along with taxable expenses. The objectors failed to timely post any portion of the bond. Instead, they filed a motion in the Court of Appeals seeking to reduce or eliminate the bond, but without filing a motion for a stay or a timely notice of appeal from the order requiring the bond. The Sixth Circuit explained that the objectors would not have prevailed on a motion for stay because they were not likely to succeed on the merits and did not face irreparable harm where they could have appealed the bond order. The objectors also failed to file a timely motion in the district court to extend the time to appeal the bond order (they filed a motion that was late by one day). Neither the district court nor the Sixth Circuit could extend the time to appeal the bond order because the 30-day period had run. The Sixth Circuit further concluded that it was appropriate to dismiss the objectors’ appeal from the settlement (which was timely) because the objectors failed to timely post the required bond. Dismissal of the appeal was appropriate because: (1) the delay in disbursement of the settlement funds substantially prejudiced the class; (2) the objectors had no valid justification for failing to pay at least a portion of the required amount even if they were unable to pay the entire bond; and (3) the objectors were unlikely to succeed on the merits of their appeal from the settlement because the settlement notice was adequate and the terms appeared to be reasonable. Seeking an appeal bond may be a practical and effective strategy for parties to a class action settlement. It protects the interests of the class and settling defendant(s), deters meritless appeals, and ensures that objectors are serious and prepared to bear the costs of delay. When a class action settlement is objected to and subsequently approved by the court, objectors sometimes appeal, which can substantially delay the settlement process including distribution of settlement funds to class members. To mitigate the risks and costs of such delays, parties to the settlement can ask the court to require objectors to post an appeal bond. This was successful in a recent case decided by the U.S. Court of Appeals for the Sixth Circuit. In re East Palestine Train Derailment, – F.4th –, 2025 WL 3089606 (6th Cir. Nov. 5, 2025), involved a train derailment in Ohio resulting in the release of toxic chemicals. Property owners in the area brought a class action, and the railroad agreed to pay $600 million for a class settlement. Five class members objected, raising concerns about the notice and adequacy of evidence used to evaluate the settlement, and appealed the order approving the settlement. The settling parties requested, and the district court imposed, an appeal bond of $850,000 to cover anticipated administrative costs due to the delay caused by the appeal, along with taxable expenses. The objectors failed to timely post any portion of the bond. Instead, they filed a motion in the Court of Appeals seeking to reduce or eliminate the bond, but without filing a motion for a stay or a timely notice of appeal from the order requiring the bond. The Sixth Circuit explained that the objectors would not have prevailed on a motion for stay because they were not likely to succeed on the merits and did not face irreparable harm where they could have appealed the bond order. The objectors also failed to file a timely motion in the district court to extend the time to appeal the bond order (they filed a motion that was late by one day). Neither the district court nor the Sixth Circuit could extend the time to appeal the bond order because the 30-day period had run. The Sixth Circuit further concluded that it was appropriate to dismiss the objectors’ appeal from the settlement (which was timely) because the objectors failed to timely post the required bond. Dismissal of the appeal was appropriate because: (1) the delay in disbursement of the settlement funds substantially prejudiced the class; (2) the objectors had no valid justification for failing to pay at least a portion of the required amount even if they were unable to pay the entire bond; and (3) the objectors were unlikely to succeed on the merits of their appeal from the settlement because the settlement notice was adequate and the terms appeared to be reasonable. Seeking an appeal bond may be a practical and effective strategy for parties to a class action settlement. It protects the interests of the class and settling defendant(s), deters meritless appeals, and ensures that objectors are serious and prepared to bear the costs of delay.

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Advisory Committee on Federal Civil Rules Considering Potential Amendments to Class Action Rule and Potential Third-Party Litigation Funding Rule

At a recent meeting, the Advisory Committee on Civil Rules of the Judicial Conference of the United States discussed, at an early stage, potential amendments to the federal class action rule, as well as a potential rule requiring disclosure of third-party litigation funding. No specific proposed amendments are before the committee at this stage (see the agenda packet for more details). The potential amendments to Rule 23 include: Superiority Requirement (Rule 23(b)(3)): The potential amendment would expressly state that courts can consider non-litigation remedies, such as voluntary  refunds, recalls, etc., in deciding whether a class action would be superior to other methods for resolving the dispute. While some courts have considered these under the existing rule, others have concluded that the current rule does not allow these to be considered because it refers to “adjudicating.” Defense bar organizations have supported this proposal. Incentive Awards: The committee is considering whether to amend the rule to expressly permit incentive awards for class representatives, effectively resolving the circuit split created by an Eleventh Circuit decision (see my blog post) that disallowed them in that circuit. This proposal seems likely to draw some support from both sides of the class action bar, although some members of the committee may not view its role as including resolving a circuit split. Pre-Certification Settlement Approval: The committee is considering a proposal that would require court approval of individual settlements between named plaintiffs and the defendant(s). Prior to 2003, some courts had interpreted the then-existing version of Rule 23 as requiring such approval. The 2003 amendment to Rule 23(e) made clear that approval was required only if a class had been certified (or was being proposed to be certified for settlement purposes, as a 2018 amendment clarified). The concern motivating this potential change appears to be plaintiffs including class allegations in complaints for purposes of settlement leverage and then pursuing early individual settlements. It is unclear what the standard would be for court approval of an individual settlement pre-class certification. This rule change could create an impediment and delay in resolving putative class actions that have little merit. It might dissuade plaintiffs’ lawyers from including class allegations in complaints where they have no serious intention of pursuing them, although the pre-2003 rule did not appear to have that effect. As to third-party litigation funding, which is likely used in some class actions, while no specific proposal is before the committee, proponents of a new rule have suggested that it be modeled on the portion of Rule 26(a) that requires disclosure by defendants of insurance policies that may provide coverage for a judgment against the defendants. Concerns motivating these proposals include the potential for conflicts of interest or undue influence by the litigation funder. Any new rule may need to specify what types of arrangements need to be disclosed, in which types of cases (if not all cases), and what information needs to be disclosed. Congress is also considering potential legislation requiring disclosure. The defense bar generally supports disclosure of litigation funding arrangements. Overall, these are all important proposals that have and will continue to generate strong views on both sides of them. I don’t think any of them, however, are likely to be game changers in class action litigation. The potential superiority rule change and third-party litigation funding disclosure likely would be most significant for lawyers defending class actions and their clients. At a recent meeting, the Advisory Committee on Civil Rules of the Judicial Conference of the United States discussed, at an early stage, potential amendments to the federal class action rule, as well as a potential rule requiring disclosure of third-party litigation funding. No specific proposed amendments are before the committee at this stage (see the agenda packet for more details). The potential amendments to Rule 23 include: Superiority Requirement (Rule 23(b)(3)): The potential amendment would expressly state that courts can consider non-litigation remedies, such as voluntary  refunds, recalls, etc., in deciding whether a class action would be superior to other methods for resolving the dispute. While some courts have considered these under the existing rule, others have concluded that the current rule does not allow these to be considered because it refers to “adjudicating.” Defense bar organizations have supported this proposal. Incentive Awards: The committee is considering whether to amend the rule to expressly permit incentive awards for class representatives, effectively resolving the circuit split created by an Eleventh Circuit decision (see my blog post) that disallowed them in that circuit. This proposal seems likely to draw some support from both sides of the class action bar, although some members of the committee may not view its role as including resolving a circuit split. Pre-Certification Settlement Approval: The committee is considering a proposal that would require court approval of individual settlements between named plaintiffs and the defendant(s). Prior to 2003, some courts had interpreted the then-existing version of Rule 23 as requiring such approval. The 2003 amendment to Rule 23(e) made clear that approval was required only if a class had been certified (or was being proposed to be certified for settlement purposes, as a 2018 amendment clarified). The concern motivating this potential change appears to be plaintiffs including class allegations in complaints for purposes of settlement leverage and then pursuing early individual settlements. It is unclear what the standard would be for court approval of an individual settlement pre-class certification. This rule change could create an impediment and delay in resolving putative class actions that have little merit. It might dissuade plaintiffs’ lawyers from including class allegations in complaints where they have no serious intention of pursuing them, although the pre-2003 rule did not appear to have that effect. As to third-party litigation funding, which is likely used in some class actions, while no specific proposal is before the committee, proponents of a new rule have suggested that it be modeled on the portion of Rule 26(a) that requires disclosure by defendants of insurance policies that may provide coverage for a judgment against the defendants. Concerns motivating these proposals include the potential for conflicts of interest or undue influence by the litigation funder. Any new rule may need to specify what types of arrangements need to be disclosed, in which types of cases (if not all cases), and what information needs to be disclosed. Congress is also considering potential legislation requiring disclosure. The defense bar generally supports disclosure of litigation funding arrangements. Overall, these are all important proposals that have and will continue to generate strong views on both sides of them. I don’t think any of them, however, are likely to be game changers in class action litigation. The potential superiority rule change and third-party litigation funding disclosure likely would be most significant for lawyers defending class actions and their clients.

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Ninth Circuit Finds Class Certification Inappropriate in Case Involving Projected Sold Adjustments on Auto Insurance Total Losses

A recent Ninth Circuit decision reconciled other decisions within that circuit involving auto insurance total losses, concluding that individual questions predominated and therefore affirming the district court’s denial of class certification. The dissent, however, called for en banc review, suggesting that an intra-circuit split exists. In Ambrosio v. Progressive Preferred Insurance Company, – F. 4th –, 2025 WL 2628179 (9th Cir. Sept. 12, 2025), the plaintiffs brought a putative class action against Progressive, alleging that it improperly used a “projected sold adjustment” (PSA) to calculate the actual cash value (ACV) of their totaled vehicles. The PSA was used to adjust list prices of comparable vehicles to reflect negotiations at the time of sale. The plaintiffs claimed this resulted in undervaluation and a breach of contract. The district court declined to certify the proposed class on the grounds that individualized issues would predominate, and the plaintiffs appealed. Affirming the district court, the Ninth Circuit found that the PSA was not facially unlawful under the policies defining ACV based on market value because each insured would need to compare the allegedly flawed “market value” with a correct one to win on the merits. The court noted that the PSA was designed to reflect consumer purchasing behavior and was not unlawful under Arizona law, distinguishing another similar Ninth Circuit case involving a Washington statute. The plaintiffs argued that the PSA always resulted in an undervaluation, but the court disagreed. It explained that “[w]e cannot now read an unwritten requirement into the contract of how to calculate ‘market value,’” and “[i]f the appraisal from [Progressive’s vendor] resulted in a fair ‘market value’ assessment, even while using the PSA, then the ACV would be accurate, and there would be no injury.” Moreover, “[t]his is not a dispute over the amount of any individual’s damages ... but over an essential element of each individual [putative class member’s] claim,” i.e., injury.  Progressive had demonstrated that it, if a factfinder accepted its evidence from “blue book” type sources, it could prove that, for at least two putative class members, the vehicle’s market value was higher than the amount paid. The majority noted that “denying Progressive this defense altogether would seem to violate due process.” Judge Wallach of the Federal Circuit, sitting by designation, dissented. The dissent concluded that the PSA was a one-sided deduction that did not fit the contract’s requirement to determine ACV. The dissent criticized Progressive’s evidence of market value as inconsistent with how the claims were adjusted. It concluded that the district court should have certified the class and then interpreted the policy at the summary judgment stage or trial. The dissent acknowledged, however, that the majority opinion was consistent with recent decisions by the Third, Fourth and Seventh Circuits, all in similar cases involving Progressive’s use of PSAs. The dissent also suggested that en banc review may be appropriate. The majority opinion highlighted a couple of defense strategies that I have often mentioned on this blog, and which were successful here. First, demonstrate how individual putative class members’ cases would be tried if they were individual cases, with specific evidence showing a lack of injury. Second, stress that the defendant cannot be deprived of presenting those defenses merely because of the plaintiff’s desire for class treatment. The class action mechanism is not supposed to alter the parties’ substantive rights. A recent Ninth Circuit decision reconciled other decisions within that circuit involving auto insurance total losses, concluding that individual questions predominated and therefore affirming the district court’s denial of class certification. The dissent, however, called for en banc review, suggesting that an intra-circuit split exists. In Ambrosio v. Progressive Preferred Insurance Company, – F. 4th –, 2025 WL 2628179 (9th Cir. Sept. 12, 2025), the plaintiffs brought a putative class action against Progressive, alleging that it improperly used a “projected sold adjustment” (PSA) to calculate the actual cash value (ACV) of their totaled vehicles. The PSA was used to adjust list prices of comparable vehicles to reflect negotiations at the time of sale. The plaintiffs claimed this resulted in undervaluation and a breach of contract. The district court declined to certify the proposed class on the grounds that individualized issues would predominate, and the plaintiffs appealed. Affirming the district court, the Ninth Circuit found that the PSA was not facially unlawful under the policies defining ACV based on market value because each insured would need to compare the allegedly flawed “market value” with a correct one to win on the merits. The court noted that the PSA was designed to reflect consumer purchasing behavior and was not unlawful under Arizona law, distinguishing another similar Ninth Circuit case involving a Washington statute. The plaintiffs argued that the PSA always resulted in an undervaluation, but the court disagreed. It explained that “[w]e cannot now read an unwritten requirement into the contract of how to calculate ‘market value,’” and “[i]f the appraisal from [Progressive’s vendor] resulted in a fair ‘market value’ assessment, even while using the PSA, then the ACV would be accurate, and there would be no injury.” Moreover, “[t]his is not a dispute over the amount of any individual’s damages ... but over an essential element of each individual [putative class member’s] claim,” i.e., injury.  Progressive had demonstrated that it, if a factfinder accepted its evidence from “blue book” type sources, it could prove that, for at least two putative class members, the vehicle’s market value was higher than the amount paid. The majority noted that “denying Progressive this defense altogether would seem to violate due process.” Judge Wallach of the Federal Circuit, sitting by designation, dissented. The dissent concluded that the PSA was a one-sided deduction that did not fit the contract’s requirement to determine ACV. The dissent criticized Progressive’s evidence of market value as inconsistent with how the claims were adjusted. It concluded that the district court should have certified the class and then interpreted the policy at the summary judgment stage or trial. The dissent acknowledged, however, that the majority opinion was consistent with recent decisions by the Third, Fourth and Seventh Circuits, all in similar cases involving Progressive’s use of PSAs. The dissent also suggested that en banc review may be appropriate. The majority opinion highlighted a couple of defense strategies that I have often mentioned on this blog, and which were successful here. First, demonstrate how individual putative class members’ cases would be tried if they were individual cases, with specific evidence showing a lack of injury. Second, stress that the defendant cannot be deprived of presenting those defenses merely because of the plaintiff’s desire for class treatment. The class action mechanism is not supposed to alter the parties’ substantive rights.

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How Will Trump v. CASA, Inc.  Affect Class Certification Law?

The Supreme Court’s recent decision in Trump v. CASA, Inc., –– S. Ct. ––, 2025 WL 1773631 (U.S. June 27, 2025), restricting the use of “universal injunctions” by federal district courts, is receiving extensive attention regarding how it may affect the litigation challenging various executive orders and actions of President Trump. From the perspective of a class action defense lawyer, I wonder how this opinion may drive changes in class action law. It undoubtedly creates pressure for parties challenging executive actions to seek expedited class certification and for lower courts flooded with litigation to grant certification. This could drive courts to lighten the burden to establish class certification and expedite the consideration of it. Such decisions on class certification issues, certainly at the appellate level, potentially would apply not only to government action but also to corporate action. Justice Barrett’s majority opinion only briefly touches on class actions. The opinion explains how a “bill of peace” in English chancery courts was a predecessor to the modern class action but would bind only members of a small, cohesive group. Justice Barrett concluded that “universal injunctions circumvent Rule 23’s procedural protections and allow courts to ‘create de facto class actions at will,” in other words, “universal injunctions are a class-action workaround.” Justice Alito’s concurrence, joined by Justice Thomas, highlighted how class certification might be used as a means of enabling universal injunctions. Justice Alito wrote that “today’s decision will have very little value if district courts award relief to broadly defined classes without following ‘Rule 23’s procedural protections’ for class certification.” He expressed a concern that “a hasty application of Rule 23 ... can have drastic consequences, creating ‘potential unfairness’ for absent class members and confusion (and pressure to settle) for defendants.” While the Government rarely faces “pressure to settle” in cases like Trump v. CASA, corporate defendants certainly do.  Justice Alito was concerned that if class certification requirements are not rigorously followed, “today’s decision will be of little more than minor academic interest” and “class certification would create a potentially significant loophole.” Justice Kavanaugh’s concurrence only briefly mentioned class actions but seemed more optimistic about the use of Rule 23(b)(2) class actions to enable broad classwide injunctive relief. Rule 23(b)(2) allows class certification where the Rule 23(a) requirements are met, and “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Justice Kavanaugh noted that “[i]f there is no classwide or set-aside relief in [these] kind of nationally significant matters, then one would expect a flood of decisions from lower courts” that “will probably inundate this Court with applications for stays or injunctions.” Justice Sotomayor’s dissent, joined by Justices Kagan and Jackson, explicitly encouraged the use of class actions as a potential mechanism to enable universal injunctions where appropriate. She wrote that “the majority leaves untouched one important tool to provide broad relief to individuals subject to lawless Government conduct: Rule 23(b)(2) class actions for injunctive relief.” Justice Sotomayor suggested that “[f]or suits challenging policies as blatantly unlawful and harmful as the Citizenship Order, moreover, lower courts would be wise to act swiftly on such requests for relief and to adjudicate the cases as quickly as they can so as to enable this Court’s prompt review.” The flood of litigation to come and the speed with which lower courts will be pressed to act may drive the development of class action law. Concerns about “drive through” class certification orders in some state trial courts motivated the enactment of the Class Action Fairness Act of 2005. Courts adjudicating the constitutionality of President Trump’s birthright citizenship executive order (and various other executive actions) will be understandably motivated to find a mechanism to reduce the burden on the court system and get the issue quickly back to the Supreme Court to decide the merits. But appellate decisions endorsing “quick and dirty” decisions on class certification could have broader impacts. Undoubtedly plaintiffs’ lawyers will cite them in seeking class certification and defense lawyers will be faced with distinguishing them. While some government actions may be universal in a way that is distinguishable from corporate actions that involve more individualized decisions being made across a widely disparate organization, some government actions may be less easy to distinguish from the corporate context. To the extent that class actions challenging government conduct will be brought under Rule 23(b)(2), that may be somewhat less problematic for corporate defendants that are more concerned with damages classes under Rule 23(b)(3). But corporate class actions are sometimes certified under Rule 23(b)(2) and can result in substantial settlement pressure. *  *  * On a separate note, in follow up to my blog post about Laboratory Corporation of America Holdings v. Davis, the Supreme Court dismissed the writ of certiorari as improvidently granted. Presumably this was based on arguments made by the plaintiffs and some amici that the case was moot due to the district court’s amendment to the class certification order. The question of whether a class may be certified if some proposed class members lack an Article III injury will have to wait for another case, perhaps as soon as the next Term. Only Justice Kavanaugh dissented and would have reached the merits. Laboratory Corp. of Am. Holdings v. Davis, 145 S. Ct. 1608 (2025) (Kavanaugh, J., dissenting). Justice Kavanaugh would have ruled that “[f]ederal courts may not certify a damages class under Rule 23 when, as here, the proposed class includes both injured and uninjured class members.” He reasoned that such a class would not satisfy the predominance requirement. He also noted that “[o]verbroad and incorrectly certified classes threaten massive liability” and through coerced settlements that raise the cost of doing business, “can ultimately harm consumers, retirees, and workers, among others.” The Supreme Court’s recent decision in Trump v. CASA, Inc., –– S. Ct. ––, 2025 WL 1773631 (U.S. June 27, 2025), restricting the use of “universal injunctions” by federal district courts, is receiving extensive attention regarding how it may affect the litigation challenging various executive orders and actions of President Trump. From the perspective of a class action defense lawyer, I wonder how this opinion may drive changes in class action law. It undoubtedly creates pressure for parties challenging executive actions to seek expedited class certification and for lower courts flooded with litigation to grant certification. This could drive courts to lighten the burden to establish class certification and expedite the consideration of it. Such decisions on class certification issues, certainly at the appellate level, potentially would apply not only to government action but also to corporate action. Justice Barrett’s majority opinion only briefly touches on class actions. The opinion explains how a “bill of peace” in English chancery courts was a predecessor to the modern class action but would bind only members of a small, cohesive group. Justice Barrett concluded that “universal injunctions circumvent Rule 23’s procedural protections and allow courts to ‘create de facto class actions at will,” in other words, “universal injunctions are a class-action workaround.” Justice Alito’s concurrence, joined by Justice Thomas, highlighted how class certification might be used as a means of enabling universal injunctions. Justice Alito wrote that “today’s decision will have very little value if district courts award relief to broadly defined classes without following ‘Rule 23’s procedural protections’ for class certification.” He expressed a concern that “a hasty application of Rule 23 ... can have drastic consequences, creating ‘potential unfairness’ for absent class members and confusion (and pressure to settle) for defendants.” While the Government rarely faces “pressure to settle” in cases like Trump v. CASA, corporate defendants certainly do.  Justice Alito was concerned that if class certification requirements are not rigorously followed, “today’s decision will be of little more than minor academic interest” and “class certification would create a potentially significant loophole.” Justice Kavanaugh’s concurrence only briefly mentioned class actions but seemed more optimistic about the use of Rule 23(b)(2) class actions to enable broad classwide injunctive relief. Rule 23(b)(2) allows class certification where the Rule 23(a) requirements are met, and “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Justice Kavanaugh noted that “[i]f there is no classwide or set-aside relief in [these] kind of nationally significant matters, then one would expect a flood of decisions from lower courts” that “will probably inundate this Court with applications for stays or injunctions.” Justice Sotomayor’s dissent, joined by Justices Kagan and Jackson, explicitly encouraged the use of class actions as a potential mechanism to enable universal injunctions where appropriate. She wrote that “the majority leaves untouched one important tool to provide broad relief to individuals subject to lawless Government conduct: Rule 23(b)(2) class actions for injunctive relief.” Justice Sotomayor suggested that “[f]or suits challenging policies as blatantly unlawful and harmful as the Citizenship Order, moreover, lower courts would be wise to act swiftly on such requests for relief and to adjudicate the cases as quickly as they can so as to enable this Court’s prompt review.” The flood of litigation to come and the speed with which lower courts will be pressed to act may drive the development of class action law. Concerns about “drive through” class certification orders in some state trial courts motivated the enactment of the Class Action Fairness Act of 2005. Courts adjudicating the constitutionality of President Trump’s birthright citizenship executive order (and various other executive actions) will be understandably motivated to find a mechanism to reduce the burden on the court system and get the issue quickly back to the Supreme Court to decide the merits. But appellate decisions endorsing “quick and dirty” decisions on class certification could have broader impacts. Undoubtedly plaintiffs’ lawyers will cite them in seeking class certification and defense lawyers will be faced with distinguishing them. While some government actions may be universal in a way that is distinguishable from corporate actions that involve more individualized decisions being made across a widely disparate organization, some government actions may be less easy to distinguish from the corporate context. To the extent that class actions challenging government conduct will be brought under Rule 23(b)(2), that may be somewhat less problematic for corporate defendants that are more concerned with damages classes under Rule 23(b)(3). But corporate class actions are sometimes certified under Rule 23(b)(2) and can result in substantial settlement pressure. *  *  * On a separate note, in follow up to my blog post about Laboratory Corporation of America Holdings v. Davis, the Supreme Court dismissed the writ of certiorari as improvidently granted. Presumably this was based on arguments made by the plaintiffs and some amici that the case was moot due to the district court’s amendment to the class certification order. The question of whether a class may be certified if some proposed class members lack an Article III injury will have to wait for another case, perhaps as soon as the next Term. Only Justice Kavanaugh dissented and would have reached the merits. Laboratory Corp. of Am. Holdings v. Davis, 145 S. Ct. 1608 (2025) (Kavanaugh, J., dissenting). Justice Kavanaugh would have ruled that “[f]ederal courts may not certify a damages class under Rule 23 when, as here, the proposed class includes both injured and uninjured class members.” He reasoned that such a class would not satisfy the predominance requirement. He also noted that “[o]verbroad and incorrectly certified classes threaten massive liability” and through coerced settlements that raise the cost of doing business, “can ultimately harm consumers, retirees, and workers, among others.”

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