Class action denied in Applied Underwriters case

A federal judge in Northern California denied a request to certify a class in a lawsuit three employers filed against Applied Underwriters over its EquityComp and SolutionOne programs.

“Since a class action is not superior to other available methods for fairly and efficiently adjudicating the controversy, the court will deny plaintiffs’ motion for class certification,” U.S. District Judge William B. Shubb wrote in a Jan. 29 decision.

A week after the former insurance commissioner voided key policy documents that Shasta Linen signed when enrolling in EquityComp, Shasta Linen in January 2016 filed a complaint with the federal court in Sacramento accusing program administrator Applied Underwriters and its affiliates of unfair business practices. Shasta Linen sought to represent all California employers that participated in EquityComp since 2008.

The Shasta Linen complaint was joined with a similar complaint Pet Food Express filed in Alameda County Superior Court that was moved into the federal court system in 2016. Like Shasta, Pet Food Express claimed Applied Underwriters Inc. made misleading statements about how much it would pay for comp coverage through EquityComp.

Alpha Polishing was later added as a plaintiff representing employers that purchased comp coverage through a similar Applied Underwriters program called SolutionOne.

The employers sought to certify a class of hundreds of businesses alleging Applied sold illegal and fraudulent workers’ compensation programs. They argued in June that the court needs to decide whether EquityComp and SolutionOne are insurance products and whether a “reinsurance participation agreement” employers signed when enrolling in the programs modified coverage terms to change rates or dispute-resolution requirements.

Without class certification, the court would have to litigate the same questions using the same evidence in potentially hundreds of lawsuits, the employers argued.

Attorneys for Applied Underwriters in October argued there were too many differences with regard to allegations of unfair competition among the different employers to make a class action lawsuit feasible.

Shubb said in his decision that the question he had to answer was whether a class action is superior to other methods for employers to adjudicate their disputes with Applied. The judge said that though the common allegations that Applied Underwriters violated California law could support consolidating the case in a single venue, other factors more heavily weigh against certification, including the desire of individual employers to control litigation and the fact that some cases are already moving forward in the absence of the class action.

From the outset, the judge said employers that can afford to pay hundreds of thousands in annual premiums to enroll in EquityComp or SolutionOne are better served by bringing individual complaints against Applied.

“Where the stakes are high and each potential class member can take care of itself, the interest in individual control increases,” the judge wrote. “Given the monetary incentive and each putative class member’s presumed ability to bring its own action, this factor weighs against a finding of superiority.”

What’s more, Shubb said employers that would likely be class members represented by Shasta and the other plaintiffs have already filed “a substantial number of actions” throughout the state. The individual lawsuits suggest some employers are interested in controlling litigation themselves rather than being part of a class, the judge said.

Since the cases are already pending, a class action likely would not be appropriate because the threat of inconsistent judicial outcomes already exists, the judge wrote.

Shubb said Applied Underwriters is engaged in more than 100 arbitrations, lawsuits and administrative proceedings before the California Department of Insurance involving 67 employers. In some cases, employers brought only a single claim and are seeking a refund of money paid. Others allege multiple causes of action and ask courts to enforce certain contractual provisions. Some cases have concluded, some are on appeal and others have yet to proceed to trial.

While plaintiffs argued that there are likely still hundreds of California employers that have not filed complaints, Shubb said he was not persuaded that failure to certify a class would lead to hundreds of new lawsuits. The judge said enough time has elapsed since 2016 that it appears any remaining class members don’t have any interest in filing complaints.

Shubb also said it’s possible, as Applied Underwriters has argued, that some employers don’t want to file a lawsuit because they paid less in premiums through the program than they would have if they purchased coverage elsewhere.

Employers suing Applied Underwriters haven’t fared particularly well with Shubb in several key rulings.

On June 20, 2016, Shubb dismissed the plaintiffs’ allegation that Applied Underwriters relied on an illegal policy document, the so-called “reinsurance participation agreement,” to change coverage terms. The judge said there was no evidence at the time that the insurance commissioner had issued a decision disapproving the RPA as an unfiled rate.

But former Insurance Commissioner Dave Jones on that same day did issue a decision concluding the RPA was void and illegal because it had not been filed with his department for review. The commissioner also said he would not have approved the document had it been filed.

Shubb, however, wasn’t persuaded. He said in an October 2017 decision that he does not believe the insurance commissioner followed the proper procedure to disapprove the document. The judge also said the insurance commissioner can invalidate an unfiled document only on a prospective basis. And he pointed out that as a federal judge he wasn’t bound by administrative decisions coming from the California Department of Insurance.

The judge in 2017 also dismissed a racketeering allegation brought by Shasta Linen, Pet Food Express and Alpha Polishing after finding Applied Underwriters made no attempt to defraud employers by concealing how the EquityComp and SolutionOne programs work.

The judge said Applied disclosed the programs in a patent application that described a way to sell retrospective plans to employers that may not otherwise be allowed by buy retrospective coverage.

At the same time the judge allowed the case to proceed on the basis that failure to file the RPA could constitute an unlawful act under California’s unfair competition law.