Marci A. Eisenstein

Partner, Executive Committee Member, Diversity Committee Co-Chair

Marci A. Eisenstein, with Schiff Hardin since 1979, concentrates her practice on the defense of class action litigation. She has litigated more than 50 consumer-based class action challenges in federal and state courts throughout the country.

She is co-leader of our firm's Reinsurance and Insurance and Class Action Litigation groups and co-chair of our firm's Diversity Committee.

Non-OEM Parts Challenges: Ms. Eisenstein has represented insurers in nationwide and state class action challenges in more than a dozen such cases filed in state and federal courts.

Ms. Eisenstein was one of the lead trial lawyers in the trial of Avery v. State Farm, one of the few multi-state insurance consumer class actions ever to have gone to trial. In Avery, a 48-state class comprised of millions of State Farm policyholders sued to recover for billions of dollars of damages they claimed to have incurred when State Farm adjusted their auto damage claims by specifying non-OEM ("original equipment manufacturer") parts. In August of 2005, the Illinois Supreme Court reversed the trial court judgment of more than $1 billion and, relying largely on the trial and pre-trial record developed by Ms. Eisenstein and her team, decertified the class and directed dismissal of the case with prejudice.

In addition, Ms. Eisenstein has successfully defeated the certification of several other non-OEM parts classes after evidentiary hearings, secured the dismissal of other such cases on motion, and negotiated class-wide settlements of others.

Colossus Challenges: Ms. Eisenstein has represented several insurers in putative industry-wide class challenges to the use of Colossus to assist in the valuation of general damages in UM/UIM (uninsured motorist/under insured motorist) claims.

Total Loss Valuation Challenges: Ms. Eisenstein has represented insurers in putative nationwide and state class actions challenging their valuation of totaled vehicles. Ms. Eisenstein has secured the dismissal of several such claims, and also negotiated, structured and administered an industry-wide class action settlement which resulted in the settlement of total loss claims against a dozen major P&C carriers.

Medical Utilization Review Challenges: Ms. Eisenstein has defended against numerous consumer class action challenges to the medical utilization review of PIP and medical expense claims filed in state and federal courts throughout the country. She has served as national coordinating counsel, overseeing the defense of multiple, similar class cases filed against an insurer in courts throughout the country; successfully negotiated a national class-wide settlement on behalf of another insurer; and secured the dismissal of a number of similar cases.

PPO Challenges: Ms. Eisenstein has represented several insurers in challenges asserted by medical providers or insureds to the reduction of medical bills based on PPO discounts, and has successfully secured the dismissal of such cases.

Mid-Term Premium Challenges: Ms. Eisenstein has defended against class action challenges to an insurer's mid-term premium charges for newly licensed drivers.

Contractual Reimbursement/Subrogation Challenges: Ms. Eisenstein has represented insurers in asserted class actions challenging the insurers' exercise of contractual reimbursement rights.

• Negotiated a nationwide class settlement on behalf of an insurer facing nationwide and state class challenges to its life insurance sales practices.
  
• Represented an accidental death insurer in challenges to the application of a policy exclusion on behalf of a proposed multi-state class.

Represented an insurer in a purported class action challenging the notice of reductions in coverage.

• Represented an insurer against a putative class action concerning the coverage afforded for intentional torts.
  

Ms. Eisenstein has defended against workers compensation insurers against class-wide challenges to medical bill review and PPO discounts.

• Successfully defended a commercial carrier against a class-wide challenge to its adjustment of business interruption claims.
  
• Twice defeated class plaintiffs' motion for class certification.
  
• Secured a decisive victory when the court granted summary judgment on the policy interpretation issue.
  

Ms. Eisenstein has led a team of lawyers who have defended insurers against complex extra-contractual liability claims at the trial, post-trial and appellate stages. Their experiences include:

• Stepping in after an adverse jury verdict to represent a commercial carrier at a bench trial on multiplying damages and in post-trial appellate proceedings. We argued the appeal before the Sixth Circuit which reversed the jury verdict.
  
  
• Stepping in to represent a carrier post-trial and on appeal after an Alabama federal judge held the carrier liable for compensatory and punitive damages for failing to contribute to the settlement of an uncovered claim it had defended under a reservation of rights. Ms. Eisenstein argued the appeal to the 11th Circuit which reversed the judgment in a decision holding that an insurer cannot be liable for bad faith absent coverage. Twin City Fire Insurance Company v. Colonial Life & Accident Insurance Company, 375 F.3d 1097 (11th Cir. 2004).
  
  
• Assisting trial counsel in a North Carolina state court mold coverage dispute by drafting summary judgment papers and providing strategic advice on oral argument. The court granted the insurer total victory on summary judgment, which was affirmed on appeal.
  
  
• Stepping in to represent a carrier post-trial and on appeal following an adverse jury verdict in Mississippi state court. The Mississippi Supreme Court was persuaded that the trial court's failure to bifurcate the coverage and bad faith issues denied the carrier a fair trial. Hartford Underwriters Ins. Co. v. Williams, 936 So.2d 888 (Miss. 2006).
  

Experience

Ms. Eisenstein also has concentrated on defending insurers against class-wide antitrust challenges to their claims and underwriting practices. She has represented:

• Hartford Insurance Group in Sherman Act Section 1 litigation [In re Workers' Compensation Insurance Antitrust Litigation, 867 F.2d. 1552 (8th Cir. 1989) and Hartford Fire Ins. Co. v. California, 113 S.Ct. 2891 (1993)]
  
  
• State Farm Mutual Automobile Insurance Company in Sherman Act Section 1 cases [Quality Auto Body, Inc. v. Allstate Insurance Company, et al., 660 F.2d 1195 (7th Cir. 1981) and Zinser, et al. v. Rose, et al., 868 F.2d 938 (7th Cir. 1989)]
  
  
• State Farm and served as liaison counsel for a large group of insurer defendants in a class-wide antitrust suit challenging the insurers' retention of medical consultants in Mitchael v. Intracorp. The district court's entry of summary judgment for the defendants was affirmed on appeal [Mitchael v. Intracorp, 179 F.3d 847 10th Cir. (Kan.), Apr. 27, 1999].

Publications

"Enforcing Arbitration Clauses in Consumer Class Actions: An Uncertain Future," The Brief (American Bar Association) (Summer 2006)

Class Actions, Chapter on "Discovery," Illinois Institute for Continuing Legal Education (2001, updated 2006)

Speeches and Presentations

"CAFA: Two and a Half Years of Fairness?" The Future of Class Action Litigation in America, ABA Tort Trial & Insurance Practice Section, Washington, D.C. (October 25, 2007)

"Strategic Planning: Defining, Setting, and Achieving Goals," (Panelist) ABA Commission on Women in the Profession, Section of Litigation, and Young Lawyers Division and the ABA Center for Continuing Legal Education (March 31, 2006)

"An Overview of The Class Action Reform Act of 2005," Event: The Future of Class Action Litigation in America, ABA Tort Trial and Insurance Practice Section, Washington, D.C. (November 10, 2005)

"The Enforceability of Arbitration Clauses in Consumer Class Actions: Will Enforcement Blunt Class Actions or Lead to Classwide Arbitrations?" ABA Seminar: The Future of Class Action Litigation in America, Boston, MA (2003)

"How to Get Class Certification of an Insurance Coverage Issue," Representing defendant insurer's position in mock class certification hearing at TIPS Section, ABA Annual Meeting, San Francisco, CA (1997)

"Duty of Insureds to Notify Excess Carriers — Viewpoint of the Self Insured Policyholder," TIPS Section, ABA Annual Meeting, New York, NY (1993)

"Defense Sharing Agreements: Discoverability and Enforceability," CBA Antitrust Section (November 1990)

Awards and Honors

Leading Lawyer — Class Action/Mass Tort Defense Law, Illinois Leading Lawyers Network

Illinois Super Lawyers, Class Action/Mass Torts

AV Peer Review Rated, Martindale-Hubbell

Education