Federal courts of appeals have disagreed on whether a named plaintiff in a proposed class action can sue defendants who have not injured that plaintiff but allegedly have injured putative class members.  This is not an uncommon scenario. Plaintiffs often attempt to bring putative class actions that are broader than their own claims, suing defendants that did not injure them. The Sixth Circuit recently weighed in on this issue, rejecting the “juridical link” doctrine and holding that a named plaintiff has no standing to sue a defendant that did not injure that plaintiff. This is a thorough opinion that will be useful for defendants on this issue.

In Fox v. Saginaw County, – F.4th –, 2023 WL 3143922 (6th Cir. Apr. 28, 2023), a Michigan County foreclosed on the plaintiff’s property because he failed to pay property taxes. The county sold the property for much more than the amount of back taxes owed but the plaintiff did not receive any of the surplus. In other litigation, this practice has been held to be an unconstitutional taking. (Coincidentally, the U.S. Supreme Court heard oral argument on Friday regarding whether an essentially-identical practice in Minnesota is unconstitutional, with SCOTUSblog reporting that the justices appeared inclined to rule for the homeowner). The plaintiff in this case sued not only the county that had taken his property but also 26 other Michigan counties that allegedly had harmed putative class members in substantially the same manner. The district court certified that entire class, and the Sixth Circuit accepted an interlocutory appeal under Rule 23(f).

The Seventh Circuit has held that under the “juridical link” doctrine a proposed class representative can sue defendants that did not injure the class representative if the class members would have standing and the named plaintiff can otherwise satisfy the requirements for class certification. But the Second and Eighth Circuits have rejected that theory (see my blog post on the Second Circuit decision).

In Fox, the Sixth Circuit addressed this issue thoroughly, rejecting the “juridical link” doctrine as contrary to Supreme Court precedent for three reasons. First, the Supreme Court has generally rejected the notion that standing should be evaluated differently in a putative class action as compared with an individual suit, requiring that named plaintiffs establish a personal, individual injury and generally limiting the scope of any class claims consistent with the named plaintiff’s claim. Second, given that standing must be established at the outset of litigation before a class has been certified, logically standing cannot depend on injuries to putative class members that are not yet parties when the case is brought. Third, the efficiency rationale for the “juridical link” doctrine cannot override the separation-of-powers rationale for Article III standing requirements.

Given the Supreme Court’s decisions looking to historical practice in evaluating standing issues, the Sixth Circuit’s opinion included an interesting discussion of some of the historical predecessors of the modern class action in English courts, including “bills of peace,” whereby, for example, “[t]he named tenants of a manor might represent all of the tenants in a dispute against the manor’s lord over hunting rights on manorial lands.” This did not support the “juridical link” doctrine because no historical evidence was found of “bills of peace in which, say, named tenants sued not just the lord of their own manor on behalf of their cotenants but also the lords of all other manors.”

The Sixth Circuit also noted some problems that might be encountered on remand. While the plaintiff might be able to find 26 other named plaintiffs from the other counties to join him, thereby avoiding the standing problem, he would face other obstacles that the district court had not addressed. Proving the fair market value of every putative class member’s property could potentially overwhelm any common questions. The district court also would have to address whether individualized defenses could be litigated in a manageable way, and how mortgages and other liens would be addressed. If class certification were sought again, the district court would have to “forecast how the parties will conduct the litigation from the certification stage through the trial to the final judgment.”

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.