A recent Texas Supreme Court decision in a class action caught my eye because it addressed several significant class certification issues, including one that I’ve seen regularly and another that the court analyzed in a new and different way. First, the court held that a named plaintiff does not have standing to seek injunctive relief where the possibility of imminently sustaining a similar future injury is speculative. Second, standing can pose a predominance problem—the court held that “the predominance requirement cannot be met when, from the outset, it is clear that substantial variation exists among the class regarding standing.” Third, a named plaintiff with an “atypically strong” claim may not satisfy the typicality requirement.

In USAA Casualty Insurance Co. v. Letot, No. 22-0238, – S.W.3d –, 2024 WL 2490521 (Tex. May 24, 2024), the plaintiff owned a vintage Mercedes sedan that was rearended by another driver. She made a third-party claim with the other driver’s insurer. The insurer concluded the vehicle was a total loss, promptly issued a check to the plaintiff for the vehicle’s pre-loss value, and notified the Texas Department of Transportation (“DOT”) that the vehicle was salvage (meaning it could not be driven on public roads or sold without obtaining a salvage title). The plaintiff disagreed with the total loss determination and with the insurer’s notification to the DOT. She later brought a putative class action alleging that the insurer should not notify the DOT before a vehicle owner accepts the proposed payment. Skipping over some other procedural history not pertinent to this decision, the trial court ultimately certified a class seeking both injunctive relief and damages, and the court of appeals affirmed. The Texas Supreme Court reversed.

First, the Texas Supreme Court held that the named plaintiff did not have standing to seek injunctive relief, but she had standing to seek damages. Texas law on standing appears to largely mirror federal law. The court explained that a past injury can be sufficient for standing only if it is “quite likely that [the plaintiff] will go through the same experience again.” Here, the plaintiff could encounter the same problem only if she experienced another accident in which the other driver was responsible and was insured by the same insurer. The court explained that this was the same risk that anyone else in the general public would face and was thus insufficient to confer standing. On top of that, the same issue would arise again only if the insurer determined there was a total loss, made the same report to the DOT, and the plaintiff disagreed. All of this was too speculative to confer standing to seek injunctive relief. But the plaintiff adequately alleged a damages claim based on the alleged impact of the report to the DOT.

Second, in addressing class certification, the Texas Supreme Court concluded that the predominance requirement was not satisfied because “standing itself poses a threat to predominance” by necessitating “highly individualized inquiries.” Some class members would want the insurer to expedite the payment of their claim and would not object to notifying the DOT. While the Texas Supreme Court did not decide whether every class member must have standing (an open question in federal courts at the U.S. Supreme Court level), it concluded that where standing would be a highly individualized question, a class could not be certified. This holding is potentially helpful to defendants in other contexts, such as data breach cases where standing is often highly individualized.

Third, the named plaintiff’s claim failed the typicality requirement because it was “atypically strong” – she had good (but unusual) reasons why she did not want her vintage car declared a total loss and had persuaded the insurer to try to withdraw its notice to the DOT. This is a good example of why selecting a “strong” class representative can sometimes backfire for plaintiffs’ counsel.

Overall, this case presents several potentially useful strategies for defense counsel: (1) defending against an attempt to certify an injunctive relief class on the ground that the potential for the named plaintiff to suffer a future injury is speculative; (2) focusing on the individualized nature of standing determinations for class members in challenging the predominance requirement; and (3) recognizing that an “atypically strong” named plaintiff may be an inappropriate class representative.

Photo of Wystan Ackerman Wystan Ackerman

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you…

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you have something to say.  For those looking for my detailed law firm bio, click here.  If you want a more light-hearted and hopefully more interesting summary, read on:

People often ask about my unusual first name, Wystan.  It’s pronounced WISS-ten.  It’s not Winston.  There is no “n” in the middle.  It comes from my father’s favorite poet, W.H. (Wystan Hugh) Auden.  I’ve grown to like the fact that because my name is unusual people tend to remember it better, even if they don’t pronounce it right (and there is no need for anyone to use my last name because I’m always the only Wystan).

I grew up in Deep River, Connecticut, a small town on the west side of the Connecticut River in the south central part of the state.  I’ve always had strong interests in history, politics and baseball.  My heroes growing up were Abraham Lincoln and Wade Boggs (at that time the third baseman for the Boston Red Sox).  I think it was my early fascination with Lincoln that drove me to practice law.  I went to high school at The Williams School in New London, Connecticut, where I edited the school newspaper, played baseball, and was primarily responsible for the installation of a flag pole near the school entrance (it seemed like every other school had one but until my class raised the money and bought one at my urging, Williams had no flag pole).  As a high school senior, my interest in history and politics led me to score high enough on a test of those subjects to be chosen as one of Connecticut’s two delegates to the U.S. Senate Youth Program, which further solidified my interest in law and government.  One of my mentors at Williams was of the view that there were far too many lawyers and I should find something more useful to do, but if I really had to be a lawyer there was always room for one more.  I eventually decided to be that “one more.”  I went on to Bowdoin College, where I wrote for the Bowdoin Orient and majored in government, but took a lot of math classes because I found college math interesting and challenging.  I then went to Columbia Law School, where I was lucky enough to be selected as one of the minions who spent their time fastidiously cite-checking and Blue booking hundred-plus-page articles in the Columbia Law Review.  I also interned in the chambers of then-Judge Sonia Sotomayor when she was a relatively new judge on the Second Circuit, my only connection to someone who now has one-ninth of the last word on what constitutes the law of our land.  I graduated from Columbia in 2001, then worked at Skadden Arps in Boston before returning to Connecticut and joining Robinson+Cole, one of the largest Connecticut-based law firms.  At the end of 2008, I was elected a partner at Robinson+Cole.

I’ve worked on class actions since the start of my career at Skadden.  Being in the insurance capital of Hartford, we have a national insurance litigation practice and I was fortunate to have the opportunity to work on some prominent class actions arising from the 2004 hurricanes in Florida and later Hurricane Katrina, including cases involving the applicability of the flood exclusion, statutes known as valued policy laws, and various other issues.  My interest and experience in class actions gradually led me to focus on that area.

In Connecticut courts I’ve defended various kinds of class actions that go beyond insurance, including cases involving products liability, securities, financial services and consumer contracts.

My insurance class action practice usually takes me outside of Connecticut.  I’ve had the pleasure of working on cases in various federal and state courts and collaborating with great lawyers across the country.  While class actions are an increasingly large part of my practice, I don’t do exclusively class action work.  The rest of my practice involves litigating insurance coverage cases, often at the appellate level.  That also frequently takes me outside of Connecticut.  A highlight of my career thus far was working on Standard Fire Ins. Co. v. Knowles, the U.S. Supreme Court’s first Class Action Fairness Act case.  I was Counsel of Record for Standard Fire on the cert petition, and had the pleasure of working with Ted Boutrous on the merits briefing and oral argument.

I started this blog because writing is one of my favorite things to do and I enjoy following developments in class action law, writing about them and engaging in discussion with others who have an in interest in this area.  It’s a welcome break from day-to-day practice, keeps me current, broadens my network and results in some new business.

When I’m not at my desk or flying around the country trying to save insurance companies from the plaintiffs’ bar, or attending a conference on class actions or insurance litigation (for more on those, see the Seminars/Programs page of this blog), I often can be found playing or reading with my young daughter, helping my wife with her real estate and mortgage businesses, reading a book about history or politics, or watching the Boston Red Sox (I managed to find bleacher seats for Game 2 of the 2004 World Series when Curt Schilling pitched with the bloody sock).  When the weather is good I also love to take the ferry to Block Island, Rhode Island and ride a bike or walk the trails there. If you go, I highly recommend the Clay Head Trail.