"Shadow insurance" captive life insurer class actions to be "heard in tandem" by Second Circuit

Yesterday, the Second Circuit issued an Order in Maria Del Carmen Robainas v. Metropolitan Life Insurance Co., 15-3504 (Dkt. 46) that the three pending XXX/AXXX life insurer class actions would be heard "in tandem."

Previously, as we reported last week, the Plaintiffs-Appellants in three cases (which were all dismissed for lack of standing at the District Court level), filed unopposed motions to consolidate the three appeals.

The three cases are:

• Yale v. AXA Equitable Life Insurance Co. No. 15-2665,
• Robainas v. Metropolitan Life Ins. Co. No. 15-3504, and
• Yarbrough v. AXA Equitable Life Ins. Co., No. 15-3553.

Under Federal Rule of Appellate Procedure 3(b)(2), separate cases can be joined or consolidated on appeal "[w]hen the parties have filed separate timely notices of appeal." This rule of appellate procedure does not give any guidance to a court as to the proper reasons for consolidation on appeal. The Advisory Committee note states that "In consolidating appeals the separate appeals do not merge into one. The parties do not proceed as a single appellant."

After denying the unopposed motion to consolidate, the Second Circuit explained that "the appeals will be heard in tandem." Thus, each appeal will remain a separate appeal, the parties will comply with the briefing requirements under the Yale, No. 15-2665 case. Both 'sides' of the case, can elect to file a single brief addressing all three appeals, and a single copy of that brief and its relevant appendix would then be filed in the other two cases. Finally, the Clerk's office will set all three cases for argument before a single three-judge panel.

By rejecting consolidation, each Plaintiff-Appellant is allowed to rely on unique differences in the pleading (the Complaint) in his or her case. The factual record for each appeal will be unique to that case. If the cases were consolidated under Federal Rule of Appellate Procedure 3, then the record/Joint Appendix would be unified. However, the Court's ruling that the cases will be heard in tandem allows for uniform consideration of the common issue(s) of law, while allowing the factual/pleading portion of each case to be independent.

Also noteworthy about the Order is that the Plaintiffs-Appellents' opening brief(s) "are due thirty days after the Supreme Court issues a decision in Spokeo, Inc. v. Robins, 742 F.3d 409 (9th Cir. 2014), cert. granted, 135 S. Ct. 1892 (U.S. April 27, 2015)(No. 13-1339).

Spokeo was argued on November 2, 2015. As a recent article by Lee Epstein, William Landes, and Judge Richard Posner, published in the Duke Law Review notes, the Supreme Court usually issues a decision within three months of oral argument, occasionally will a case take up to six months to be decided, and practically all opinions are released by the following June when the Court closes for its summer recess. The Best For Last: The Timing of U.S. Supreme Court Decisions, 64 D.L.J. 991, 993 n 5 (2015). So, it's likely that we will see the Spokeo opinion released in early February, at which point the opening briefs in these appeals will be due one month later. This briefing schedule gives both Appellants and Appellees plenty of time to find amicus party assistance if they desire.  At the absolute latest, the Spokeo opinion should be public by late June 2016 (which is the conclusion of the Supreme Court's October 2014 term).