Picking up from the last article published on Insurance Claims and Bad Faith Law Blog, "A Christmas Story From Pennsylvania," another secrecy opinion has recently been released.
In a recent decision announced in early December, 2017, the District Judge eventually reviewed what seems to be all of the factors a judge should review when someone asks to certify a class for action. However, in this case, the judge left the public to guess why.
Her opinion has unexplained and inexplicable redactions in the text. Like holes in a blanket on a cold night, they leave a lot out.
Even the attorneys seem to be missing from this opening presentation of the case as published on Westlaw:
2017 WL 6496803
Only the Westlaw citation is currently available.
United States District Court,
C.D. California.
GORDON FELLER ET AL.
v.
TRANSAMERICA LIFE INSURANCE COMPANY
Case No. 2:16-cv-01378-CAS-AJW
|
Filed 12/11/2017
Attorneys and Law Firms
Attorneys Present for Plaintiffs: Not Present
Attorneys Present for Defendants: Not Present
I found a few of the REDACTIONS quoted in the opinion. I cannot say that I necessarily found all of them. It is interesting to note that the REDACTED materials were considered -- and rejected, for reasons unknown -- in the course of his ruling.
For example, and ironically in this instance, the judge considered the requirement that a class action be "superior" to other forms of litigation in essence. This case was about Transamerica Life Insurance Company's "monthly deduction rate ('MDR') increase imposed on holders of life insurance policies issued by Transamerica." The plaintiffs requested class action certification of these claims.
Transamerica opposed the motion on many grounds. Among other things, Transamerica argued that the action would not be superior to other forms of litigation if it proceeded as a class action. To say again, the judge rejected this contention and found in favor of class action superiority in this action, but we do not completely know why. Here is the Court's summary of this aspect of Transamerica's contentions:
Transamerica argues that plaintiffs fail to establish superiority in light of the complications of trying all putative class member claims together. Opp’n at 42. With respect to factor (A) identified in Rule 23(b)(3), class members purportedly have “substantially different interests” in controlling the prosecution of separate actions because some class members [REDACTED] and some [REDACTED] from plaintiffs’ proposed method of calculating MDR increases. Id. at 43.
Feller v. Transamerica Life Ins. Co., No. 2:16-cv-01378-CAS-AJW, 2017 WL 6496803, at *14 (C.D. Cal. December 11, 2017). Why the judge thought that Transamerica's opposition to superiority was not well taken is unclear, at its best.
I have reviewed the electronic court file of this case on PACER. The "opposition" filed on behalf of Transamerica which the Court referred to in its opinion, seems to itself have been "redacted;" large swaths of its text are simply blacked out. Presumably the judge was allowed to see them.
The plaintiffs also argued Rule 23(b)(2) "predominance" as a reason for class certification, and the judge agreed. However, Transamerica interposed certain objections at this point:
Transamerica argues that plaintiffs fail to show that the MDR increases are unlawful across the entire putative class. Opp’n at 38. Transamerica contends that, under plaintiff’s interpretation of the policy terms, some [REDACTED]. Id. at 39. Thus, plaintiffs’ requested injunctive and declaratory relief [REDACTED], and [REDACTED]. Id.
Feller v. Transamerica Life Ins. Co., No. 2:16-cv-01378-CAS-AJW, 2017 WL 6496803, at *15 (C.D. Cal. December 11, 2017). Reader, please re-read this quoted passage of the Court's opinion and please tell me and the rest of the public what the Court ruled here and on what basis. You can leave your Comments in the Comments area at the bottom of this article.
Please tell us what did Transamerica contend that under plaintiff's interpretation of its own policy terms, some what? Thus, plaintiff's requested injunctive and declaratory relief was what and what, did they say?
What were the arguments that Transamerica made in this case?
And why did the judge think that Transamerica's arguments were not well taken in this case?
Last, if we look hard enough we can kind of glean what counter-arguments the plaintiffs made in this instance:
Last, plaintiffs argue, for the same reasons there are no material conflicts of law, each policy has the same non-recoupment provision, and Transamerica applied [REDACTED] to every policy—accordingly, Transamerica’s argument that the (b)(2) class is not “cohesive” fails.
Feller v. Transamerica Life Ins. Co., No. 2:16-cv-01378-CAS-AJW, 2017 WL 6496803, at *15 (C.D. Cal. December 11, 2017). But gleaning should be for prospectors looking for small pieces of gold. Not so much for people trying to understand why a judge ruled the way she did in any case. She might rule the same way in our case some day. How would we know which arguments won the day, and which contentions did not actually work very well?
The following thoughts do not appear in the written opinion in this case, but we can still think about them. What First Amendment considerations might be involved in a decision to rule based on information known only to the parties and to the judge, information which is kept secret from everyone else without any explanation -- or recognition even -- of the concealment?
What interests does the public have in open proceedings and in rulings openly arrived at? How much greater does the public's interest become, if at all, when you consider that the public pays for the judicial system?
Finally, a decision based on REDACTED evidence and arguments implicates this question as well: What is the reason for writing an opinion in the first place? It seems that we read opinions in order to understand what judges ruled on when they made rulings, and why they ruled the way they did.
Whey write a decision that does not inform anyone of these things? Why take the time to point out that the Court considered REDACTED stuff before the Court ruled one way or another?
In the end, we are left knowing the result in this case. In future cases, perhaps results too will become REDACTED. When there is no explanation, GRANTED or DENIED says just as much as REDACTED.
Dennis Wall is investigating the court files of both reported and unreported actual cases, to shine a light in a book about how concealed evidence and secret rulings affect our lives.
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