The Second Circuit's Abramson Opinion and the Future of Commonality in Consumer Class Actions in the D. Conn.

On December 17, 2024, the Second Circuit decided Abramson v. Connecticut Light & Power Co., affirming the denial of class certification in a utility-billing consumer class action originally filed in the D. Conn. before Judge Kari A. Dooley. The opinion is the most substantive Second Circuit treatment of Rule 23(a)(2) commonality since In re Petrobras Securities, and it matters for any consumer class action in Connecticut — or anywhere in the circuit — that involves mixed individual-inquiry elements. I defended the carrier in the district court and argued the appeal in November, so I have a view on what the opinion does and does not stand for.

What the case was about

The Abramson plaintiffs alleged that CL&P's billing system had systematically over-charged residential customers during a roughly eighteen-month period in 2021 and 2022 because of a metering data-feed error that affected a subset of customers. Their theory was a CUTPA claim — Connecticut Unfair Trade Practices Act, Conn. Gen. Stat. § 42-110b — predicated on the billing conduct, with common-law unjust-enrichment claims pled in the alternative. They sought certification of a statewide class of approximately 180,000 residential customers.

Judge Dooley denied certification on Rule 23(a)(2) and (b)(3) grounds. Her central finding was that while the billing-system error was capable of classwide proof, the question of whether any individual customer had actually been damaged — and, if so, by how much — required account-level inquiry that could not be managed on a classwide basis without denying the defendant meaningful due process on individual defenses. The Second Circuit panel (Judges Chin, Carney, and District Judge Shea sitting by designation) affirmed.

The holding

The panel's holding is narrower than the plaintiffs-bar commentary has suggested. The court did not rule that CUTPA claims in utility-billing contexts are categorically unsuited for class treatment. It ruled that where the plaintiffs' own damages model required the factfinder to distinguish between customers who were over-charged and customers who were charged correctly (because the metering data feed did not affect every customer uniformly), and where that distinction could not be made without account-level review, commonality was lacking under Rule 23(a)(2) as construed in Wal-Mart v. Dukes.

The opinion repeats something that gets lost in class-action briefing: commonality under Dukes is not a question of whether there are common questions. It is a question of whether those common questions can generate common answers that will drive the resolution of the claim. In Abramson, the common question ("did CL&P's metering data-feed error exist?") generated an answer ("yes, for some customers, during some months") that did not resolve the claim as to any individual customer without further inquiry.

What this means for D. Conn. practitioners

Three practical implications.

First, the opinion will be cited heavily in the D. Conn. in any consumer class action where the plaintiffs' damages model requires individualized inquiry after a classwide liability finding. This includes most utility-billing, insurance-billing, and financial-services cases, and a meaningful fraction of pharmaceutical and product-defect cases. Expect defense counsel to lean on the Abramson formulation of Dukes in opposition briefs, and expect plaintiffs' counsel to respond by narrowing class definitions or proposing sub-classes with tighter uniformity.

Second, and less discussed, the panel's reasoning on the damages-model question effectively requires plaintiffs to plead and support, at the certification stage, a methodology for distinguishing injured from uninjured class members that does not require file-by-file review. This is a sharper version of the Comcast v. Behrend damages-methodology requirement, and it is going to pressure the use of database-driven damage modeling in complex billing cases.

Third — and this is a point I did not see the panel make explicitly, but it is implicit in the opinion — the decision will shift more Connecticut CUTPA consumer disputes into the state-court class action system under Conn. Gen. Stat. § 42-110g, which has somewhat different certification standards and is often the forum plaintiffs' counsel want in any event. I expect to see more CUTPA consumer class filings in Superior Court Complex Litigation Docket and fewer in the D. Conn. going forward, at least in any case where the plaintiffs' counsel has a choice of forum.

What the opinion does not stand for

A few things Abramson does not say, despite some early commentary.

The opinion does not create a new rule that all CUTPA class actions require individualized damages inquiry. CUTPA is a flexible statute, and certification outcomes will continue to be driven by the specific conduct and damages theory pled.

The opinion does not affect certification standards for classes seeking only injunctive or declaratory relief under Rule 23(b)(2). Those cases continue to be governed by Dukes and the Second Circuit's post-Dukes case law without modification.

And the opinion does not reach Connecticut's three-year CUTPA statute of limitations, which was raised on cross-appeal and dismissed on procedural grounds. That issue remains open for another day.

Practice note

For defense counsel in consumer class actions filed in the D. Conn., Abramson should be in your Rule 23(c) briefing toolkit. For plaintiffs' counsel, the preemptive response is going to be a tighter class definition, a narrower damages model, and — where available — a forum selection that keeps the case in state court. My colleague Claire Park is handling several insurance-billing coverage disputes that will test some of these questions in the next twelve to eighteen months, and we expect the post-Abramson certification landscape to continue developing quickly.

The full opinion is published at Abramson v. Connecticut Light & Power Co., 118 F.4th 221 (2d Cir. 2024). The district-court decision below is at 2023 U.S. Dist. LEXIS 214118 (D. Conn. Nov. 30, 2023).