Court filing
Amicus Reply Brief — APCIA & NAMIC (Class Certification, In re Society Insurance COVID-19 MDL)
Record facts
| Court | U.S. District Court for the Northern District of Illinois |
|---|---|
| Filed | 2021-08-17 |
U.S. District Court for the Northern District of Illinois · No. 1:20-cv-05965 · Doc. 254 · 2021-08-17 · Docket on CourtListener
Summary
A reply brief filed August 17, 2021 by the American Property Casualty Insurance Association and the National Association of Mutual Insurance Companies in In re: Society Insurance Co. COVID-19 Business Interruption Protection Insurance Litigation, MDL No. 2964, in the U.S. District Court for the Northern District of Illinois (No. 1:20-cv-05965, Doc. 254). It supports the amici's motion for leave to file an amici curiae brief in opposition to class certification (ECF Doc. 244) and responds to the plaintiffs' opposition (ECF Doc. 251). The brief argues that trade associations may take a side as amici, that shared counsel with Society is irrelevant, and that the proposed brief is not duplicative of Society's brief. It states that Part III of the proposed brief raises a point about Wal-Mart Stores, Inc. v. Dukes. The filing is four pages with a certificate of service.
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Full text
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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
IN RE: SOCIETY INSURANCE CO.
COVID-19 BUSINESS INTERRUPTION
PROTECTION INSURANCE LITIGATION
This Document Relates to: All Cases
MDL No. 2964
Master Docket No. 20-cv-5965
Judge Edmund E. Chang
Magistrate Judge Jeffrey I. Cummings
REPLY BRIEF OF
AMERICAN PROPERTY CASUALTY INSURANCE ASSOCIATION AND
NATIONAL ASSOCIATION OF MUTUAL INSURANCE COMPANIES
IN SUPPORT OF THEIR MOTION FOR LEAVE TO FILE AMICI CURIAE BRIEF
IN OPPOSITION TO CLASS CERTIFICATION
American Property Casualty Insurance Association (“APCIA”) and National Association
of Mutual Insurance Companies (“NAMIC”) (collectively, “Amici”) respectfully submit this short
response to certain Plaintiffs’ (“Plaintiffs”) opposition (ECF Doc. 251) to Amici’s motion for leave
to file an amici curiae brief in opposition to class certification (ECF Doc. 244).
Plaintiffs first suggest that the fact that the Seventh Circuit granted leave for Amici to file
amicus curiae briefs in various COVID-19 insurance cases should be deemed irrelevant because
those briefs did not concern class certification. (ECF Doc. 251, at 2.) Amici have not filed briefs
on class certification in other cases because they are not aware of any similar motions for class
certification being filed, likely because an overwhelming majority of these cases have been
dismissed. The fact that the Seventh Circuit appeals cited by Amici are being argued in September
suggests that it may be more efficient for this Court to await a controlling appellate decision on
the coverage issues before proceeding with a decision on class certification.
Case: 1:20-cv-05965 Document #: 254 Filed: 08/17/21 Page 1 of 4 PageID #:4305
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Plaintiffs further note that Society’s lead counsel was one of the lawyers for Amici in the
Seventh Circuit appeals. (ECF Doc. 251, at 2-3.) That is irrelevant. Amici cannot properly be
barred from participating in this case because they have retained the same counsel who represents
Society in other cases. Consistent with the rule governing amicus briefs at the appellate level,
Amici state that no party or its counsel authored the proposed amicus brief in whole or in part, or
contributed money intended to fund preparing or submitting the brief. No other person contributed
money intended to fund preparing or submitting the proposed amicus brief other than Amici. See
Fed. R. App. P. 29(a)(4)(E).
To the extent Plaintiffs suggest that it is improper for a proposed amicus curiae to have a
“partisan role,” that is, to take a side and argue its position (ECF Doc. 251, at 3-5), that is not the
law. As Judge Scudder recently noted, “[t]o be sure, the fiction that an amicus acts as a neutral
information broker, and not an advocate, is long gone.” Prairie Rivers Network v. Dynegy Midwest
Generation, LLC, 976 F.3d 761, 763 (7th Cir. 2020) (Scudder, J., in chambers). The Supreme
Court has long allowed trade associations to take a side, in support of their member companies.
See, e.g., Toyota Motor Mfg., Ky. Inc. v. Williams, 532 U.S. 970 (2001) (allowing National
Association of Manufacturers’ amicus brief in case involving member company); Rendell-Baker
v. Kohn, 457 U.S. 830, 832 n.2 (1982) (noting that party to action was member of group
participating as amicus); Funbus Sys., Inc. v. Cal. Pub. Utils. Comm’n, 801 F.2d 1120, 1125 (9th
Cir. 1986) (“A perfectly permissible role for an amicus” is to supplement counsel’s efforts and
“take a legal position and present legal arguments in support of it”). Trade associations have much
broader interests than any single member company. If Plaintiffs’ position were correct, it would
mean that the ABA or AARP, for example, could not serve as amici in cases in which their
members are parties.
Case: 1:20-cv-05965 Document #: 254 Filed: 08/17/21 Page 2 of 4 PageID #:4306
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Plaintiffs incorrectly suggest that Amici’s proposed brief is duplicative of Society’s brief.
(ECF Doc. 251, at 5-6.) Parts I and II of the proposed amicus curiae brief explain points about the
economics of insurance, the industry as a whole, and regulation of the industry that go well beyond
Society’s arguments and cite additional case law, statutes and regulations that might otherwise be
overlooked. Amici also address the McCarran-Ferguson Act and Rules Enabling Act. In addition,
Part III of the proposed amicus curiae brief makes an independent, potentially dispositive point
about Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) and its progeny.
Finally, to the extent Plaintiffs argue that their proposed calculations regarding the value
of the putative class claims were based on net income rather than revenue (ECF Doc. 251, at 6),
that is beside the point. Amici did not scour the record in this case and did not intend to take any
position regarding the factual record. Amici’s detailed explanation of the loss adjustment process
for business income claims, economic factors and causation issues, along with Amici’s citation of
case law pertinent to those issues, remain fully applicable even if Plaintiffs’ characterization of the
record is correct.
Respectfully submitted,
/s/ Matthew S. Ponzi
Matthew S. Ponzi
FORAN GLENNON
222 N. LaSalle Street,
Suite 1400
Chicago, Illinois 60601
Tel.: 312.863.5070
Dated: August 17, 2021
Email: mponzi@fgppr.com
Of Counsel:
Wystan M. Ackerman
ROBINSON & COLE LLP
280 Trumbull Street
Hartford, CT 06103
Tel.: 860.275.8200
Email: wackerman@rc.com
Case: 1:20-cv-05965 Document #: 254 Filed: 08/17/21 Page 3 of 4 PageID #:4307
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Attorneys for Amici Curiae
American Property Casualty Insurance Association
and National Association of Mutual Insurance
Companies
CERTIFICATE OF SERVICE
I hereby certify that on August 17, 2021, a copy of the foregoing was filed electronically.
Notice of this filing will be sent by email to all parties by operation of the Court’s electronic filing
system. Parties may access this filing through the Court’s CM/ECF System.
/s/ Matthew S. Ponzi
Case: 1:20-cv-05965 Document #: 254 Filed: 08/17/21 Page 4 of 4 PageID #:4308File and source
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