presents Class Certification Standards and Daubert ...

presents

Class Certification Standards and Daubert Analysis in Flux

presents

yObtaining or Defeating Certification in Light of

Circuit Courts' Differing StandardsA Live 90-Minute Teleconference/Webinar with Interactive Q&A

Today's panel features:Matthew Shors, Partner, O'Melveny & Myers, Washington, D.C.Steven G. Pearl, Principal, The Pearl Law Firm, Encino, Calif.

T dd L N P t K&L G t S ttl

A Live 90-Minute Teleconference/Webinar with Interactive Q&A

Todd L. Nunn, Partner, K&L Gates, Seattle

Thursday, July 8, 2010

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July 8, 2010

CLASS CERTIFICATION STANDARDSCLASS CERTIFICATION STANDARDSAND DAUBERT ANALYSIS IN FLUX Matt Shors

ANCIENT HISTORY: (LACK OF) SUPREME COURT GUIDANCECOURT GUIDANCE• Eisen (1974)

district courts should not “conduct a preliminary– district courts should not conduct a preliminary inquiry into the merits”

– statement made in context of notice costs• Falcon (1982)

– “rigorous analysis” requiredclass determinations are “enmeshed in the factual– class determinations are enmeshed in the factual and legal issues comprising the plaintiff’s cause of action”

• Not much since (other than asbestos settlement cases)

5

RECENT HISTORY

• 2003 AMENDMENTS TO RULE 23

– "At an early practicable stage" vs. "as soon as practicable y p g pafter the commencement of the action"

– Advisory Committee note on trial plans (“a critical need is to determine how the case will be tried”)( a critical need is to determine how the case will be tried )

– Elimination of "conditional" certifications (“a court that his not satisfied that the requirements of Rule 23 have been met should refuse certification”)

6

RECENT HISTORY (Cont.)

• The Class Action Fairness Act (2005)Fi d j i di ti l l th t i t t t– Fixed jurisdictional anomaly so that interstate class actions could be removed to federal court

– Five year results are:• more class actions in federal court• more federal claims attached in diversity cases and more

class actions filed in federal court• single-state class actions still being filed in state court

7

EVOLVING CIRCUIT COURT STANDARDS

• CIRCUITS AGREE ON "RIGOROUS" ANALYSIS FROM FALCON BUT…

• THE DEVIL IS IN THE DETAILS– What about the merits?

• Current resolution – okay if the merits bear on certification

– “Some showing” versus “Preponderance of the evidence” (district vs. circuit courts in IPO,evidence (district vs. circuit courts in IPO, Hydrogen Peroxide)

8

EVOLVING CIRCUIT COURT STANDARDS (Cont’d)(Cont d)

• Standards of Review Emerging (following adoption of Rule 23(f) in 1998)adoption of Rule 23(f) in 1998)– class certification orders are reviewed under

“abuse of discretion” standard– factual “findings” reviewed under clearly erroneous

standard– legal rulings reviewed “de novo”

9


• DAMAGES CLASS ACTIONS: RECENT RULE 23 (b)(3) QUESTIONS(b)(3) QUESTIONS– Presuming reliance to avoid the (b)(3) obstacle to common

law fraud class actionsC f d ( j it T b II)• Consumer fraud (majority vs. Tobacco II)

• RICO (Bridge)• others

Choice of law difficulties– Choice of law difficulties• Prevailing view:

– State variations defeat certification• Minority views:Minority views:

– Unnecessary at certification stage (Ark)– Defendants' home State law can be applied

10


• RULE 23 (b)(2) QUESTIONS– When Can Money Damages Claims Fit Within

(b)(2) Class Certifications?Majority rule:– Majority rule:

• only if damages are “incidental”• only if injunctive relief is appropriate “for the class as a

h lwhole:

11

THE IMPACT OF DUKES V. WAL-MART

• THE DECISIONThe Facts– The Facts

• class 1.5 million individuals “encompassing all women employed by Wal-Mart at any time after December 26, 1998)

– The Legal Theory and Proposed RemediesThe Legal Theory and Proposed Remedies• employment discrimination claims

• back pay, punitive damages, declaratory and injunctive relief

The Decision– The Decision• En banc court (by 6-5 vote) largely affirms certification on April 26,

2010

• vacated and remanded punitive damages claimsvacated and remanded punitive damages claims

12

IMPACT OF DUKES V. WAL-MART (cont.)

• Grounds for decision:– Throat-clearing on “rigorous analysis”– Throat-clearing on rigorous analysis– Bulk of opinion on commonality

• Plaintiffs showed common policy of discrimination through statistics and other evidence despite absence of any “specificstatistics and other evidence despite absence of any specific discriminatory policy”

• “Wal-Mart’s policy of decentralized, subjective employment decision making operate[s] to discriminate against female g gemployees”

• based on anecdotes, statistics, and experts– (b)(2) class despite request for back pay

• means predominance is not required• notice and opt-out unnecessary

13

THE IMPACT OF DUKES V. WAL-MART(Cont’d)(Cont d)

• BREAKING NEW GROUND?

– Absence of evidence of “significant proof that an employer operated under a general policy of discrimination” (dissent)

– Expansive use of Rule 23(b)(2)

• Rule that money damages “predominate” different from other courts (“incidental”) and has significant impacts

• Sharp departure from general (b)(2) class (text: “class as a whole”)

– Decentralized Subjectivity as a common question

• “in-store pay and promotion decisions are made within a substantial range of discretion by store or district level managers, and [] this is a g y g , []common feature which provides a wide enough conduit for gender bias to potentially seep into the system”

14

THE IMPACT OF DUKES V. WAL-MART(Cont’d)(Cont d)

• LITIGATING WAL-MART AS A DEFENDANTD t (b)(3) l ti– Does not govern (b)(3) class actions

• Predominance requirement intact and court notes “far more demanding” than commonality

– Much of analysis limited to employment discrimination claimsy p y• the use of statistical evidence

• back pay considered equitable (unlike securities fraud, consumer fraud, antitrust)

– Leaves open other attacks on (b)(2) classesp ( )( )• Monetary relief predominates if it “determines the key procedures that will be

used…introduces new and significant legal and factual issues [and] requires individualized hearing”

• Did the court forget to apply that rule? (Back pay individualized as a matter of g pp y ( p ystatutory right)

15

WHAT IS NEXT FOR DUKES?

• REMAND LEAVES QUESTIONS UNRESOLVED– punitive damages as (b)(2) class

– management/trial plan (shifting burdens for back pay claims, reference to Hilao)

• SUPREME COURT REVIEW NEXT?– Certiorari petition would be due later this month (without extension)

and resolved in the Fall

– Grounds for petition:• misapplied Rule 23 standard

d i d t i i th t thi i (b)(2) l• erred in determining that this is a (b)(2) class

• experts

16

OTHER DEFENSE STRATEGIES FOLLOWING DUKES AND OTHER RECENT DECISIONSDUKES AND OTHER RECENT DECISIONS

– Predominance requires consideration of all issues of liability

• Remember causation, damages, and affirmative defensesdefenses

• Private claims vs. Attorney General claims

17

DEFENSE STRATEGIES (Cont’d)

– Challenging "Presumed Reliance"

• Logic doesn't extend to this context

– Challenging Aggregate Damages Models– Challenging Aggregate Damages Models

• Attack theories under Rules Enabling Act

• Offer expert testimony

– Trial Plans Crystallize Difficulties

– Choice of Law

18

Class Certification afterClass Certification afterD k W lD k W l M tM tDukes v. WalDukes v. Wal--MartMart

Steven G. PearlSteven G. PearlThe Pearl Law FirmThe Pearl Law FirmThe Pearl Law FirmThe Pearl Law Firm

July 8, 2010July 8, 2010

Overview of Majority OpinionOverview of Majority OpinionOverview of Majority OpinionOverview of Majority Opinion

Explains Rule 23 certification standardsExplains Rule 23 certification standards Explains Rule 23 certification standardsExplains Rule 23 certification standards Changes the standards for Rule 23(b)(2) Changes the standards for Rule 23(b)(2)

injunctive relief casesinjunctive relief casesinjunctive relief casesinjunctive relief cases Changes the standing requirements in Changes the standing requirements in

R l 23(b)(2)R l 23(b)(2)Rule 23(b)(2) casesRule 23(b)(2) cases Provides a Rule 23 trial planProvides a Rule 23 trial plan

20June 8, 2010 The Pearl Law Firm

Rule 23 StandardsRule 23 StandardsRule 23 StandardsRule 23 Standards

Consensus among CircuitsConsensus among Circuits Consensus among CircuitsConsensus among Circuits “Rigorous analysis” of Rule 23 “Rigorous analysis” of Rule 23

prerequisites even if overlap with meritsprerequisites even if overlap with meritsprerequisites, even if overlap with meritsprerequisites, even if overlap with merits Analysis of merits issues only to the extent Analysis of merits issues only to the extent

t l R l 23 lit l R l 23 linecessary to analyze Rule 23 compliancenecessary to analyze Rule 23 compliance Limits on discoveryLimits on discovery


Not All Class Actions are AlikeNot All Class Actions are AlikeNot All Class Actions are AlikeNot All Class Actions are Alike

Different types of cases require differentDifferent types of cases require different Different types of cases require different Different types of cases require different analysesanalyses SecuritiesSecurities Securities Securities Title VII Title VII

Wage and HourWage and Hour Wage and HourWage and Hour

In certain types of cases, “the plaintiffs’ In certain types of cases, “the plaintiffs’ t ti ti l id d tt ti ti l id d t ll ithithstatistical evidence does not statistical evidence does not overlapoverlap with with

the merits, it largely the merits, it largely isis the merits.” the merits.”


Commonality andCommonality andExpert WitnessesExpert Witnesses

Showing for Rule 23(a)(2) lower than forShowing for Rule 23(a)(2) lower than for Showing for Rule 23(a)(2) lower than for Showing for Rule 23(a)(2) lower than for Rule 23(b)(3)Rule 23(b)(3)Plaintiffs must show that commonPlaintiffs must show that common Plaintiffs must show that common Plaintiffs must show that common questions exist, not answer those questions exist, not answer those questionsquestionsquestionsquestions

The question is not whose expert is more The question is not whose expert is more iipersuasivepersuasive


Rule 23(b)(2)Rule 23(b)(2)Rule 23(b)(2)Rule 23(b)(2)

OverruledOverruled Molski v GleichMolski v Gleich (9(9thth Cir 2003)Cir 2003) Overruled Overruled Molski v. GleichMolski v. Gleich (9(9 Cir. 2003) Cir. 2003) “plaintiffs’ intent” standard “plaintiffs’ intent” standard RejectedRejected Allison v CitgoAllison v Citgo (5(5thth Cir 1998)Cir 1998) Rejected Rejected Allison v. CitgoAllison v. Citgo (5(5thth Cir. 1998) Cir. 1998) “incidental damages” standard “incidental damages” standard



Court looks to plain language of RuleCourt looks to plain language of Rule Court looks to plain language of Rule Court looks to plain language of Rule 23(b)(2)23(b)(2)

CaseCase--byby--case analysis of the “objectivecase analysis of the “objective CaseCase byby case analysis of the objective case analysis of the objective effect of the relief sought” effect of the relief sought” Affects key procedures?Affects key procedures?y py p Introduces “new and significant” issues?Introduces “new and significant” issues? Requires individual hearings?Requires individual hearings?q gq g Raises particular due process and Raises particular due process and

manageability concerns?manageability concerns?



Back pay available under 23(b)(2)Back pay available under 23(b)(2) Back pay available under 23(b)(2)Back pay available under 23(b)(2) Remand to consider punitive damages: Remand to consider punitive damages:

Aff t k d j t i lAff t k d j t i l Affects key procedures: jury trialAffects key procedures: jury trial Introduces new and significant issuesIntroduces new and significant issues

f l d d df l d d d Size of potential award raises due process and Size of potential award raises due process and manageability concernsmanageability concernsB t d t i i di id l h iB t d t i i di id l h i But does not require individual hearingsBut does not require individual hearings


Standing of Former EmployeesStanding of Former EmployeesStanding of Former EmployeesStanding of Former Employees

People who were no longer employed onPeople who were no longer employed on People who were no longer employed on People who were no longer employed on date complaint filed do not have standing date complaint filed do not have standing to pursue injunctive or declaratory reliefto pursue injunctive or declaratory reliefto pursue injunctive or declaratory reliefto pursue injunctive or declaratory relief

May still be eligible for back pay and May still be eligible for back pay and punitive damagespunitive damagespunitive damagespunitive damages Separate 23(b)(3) class of former employees?Separate 23(b)(3) class of former employees?


ManageabilityManageabilityManageabilityManageability

Class size not an impediment toClass size not an impediment to Class size not an impediment to Class size not an impediment to manageabilitymanageabilityDistrict court did not abuse discretion inDistrict court did not abuse discretion in District court did not abuse discretion in District court did not abuse discretion in finding trial manageablefinding trial manageableOth tiOth ti Hil E t t f MHil E t t f M Other options: Other options: Hilao v. Estate of MarcosHilao v. Estate of Marcos(9(9thth Cir. 1996)Cir. 1996)


Will the Supreme Court Review?Will the Supreme Court Review?Will the Supreme Court Review?Will the Supreme Court Review?

WalWal--Mart says:Mart says: WalWal Mart says:Mart says: Circuit splitCircuit split Largest class action ever certifiedLargest class action ever certified Largest class action ever certifiedLargest class action ever certified Due process concernsDue process concerns

Pl i tiffPl i tiff Plaintiffs say: Plaintiffs say: No Circuit splitNo Circuit split InterlocutoryInterlocutory Unique case, not broadly applicable Unique case, not broadly applicable


E l i St d d f D b t d ClEvolving Standards of Daubert and Class Certification

Todd L. NunnK&L Gates LLPSeattle, WA

Copyright © 2010 by K&L Gates LLP. All rights reserved.

Daubert at Class CertificationDaubert at Class Certification

31

Use of Expert Testimony in Class Certification

PlaintiffsPlaintiffs Identify class – who affected, harmed, purchased Numerosity – how many affected, geographic area, y y g g p

pollution plume Commonality, Predominance – common causation,

common damage proof statistical evidence ofcommon damage proof, statistical evidence of discrimination

Defendants Manageability – individual causation and other

contributing facts

32

Superiority – alternative ways to resolve

Use of Daubert At Class Certification Class certification is discretionary If court believes case can be handled fairly as a class –

will certify Defense must communicate clearly how case will be Defense must communicate clearly how case will be

tried and why class treatment is not fair Like motions to dismiss/summary judgment If case dismissed – great Even if motions don’t succeed – communicate to court

about proof in case and difficulty of class approachp y pp Challenge to plaintiffs’ expert is such an opportunity Exclude expert/show weakness of case

Sh diffi lti f l t t t

33

Show difficulties of class treatment Demonstrate individual issues

Expert Testimony - Rule 702

If i tifi t h i l th i li d k l dIf scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as , qan expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise if (1) the testimony is based uponor otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

34

Daubert Analysis When evaluating the admissibility of expert

testimony a trial court serves as the “gatekeeper” totestimony, a trial court serves as the “gatekeeper” to ensure the reliability and relevance of the expert testimony offered into evidence.A t t l d t t ti if it i “ A court must exclude expert testimony if it is “so fundamentally unreliable that it can offer no assistance to the jury.” A court may consider a number of non-exclusive

factors when determining the reliability of expert testimony, including: (1) whether the theory or technique can (or has been) tested, (2) whether the theory has been subjected to peer review and publication, (3) the known or potential rate of error,

d (4) h th th th h b ll

35

and (4) whether the theory has been generally accepted.

Divergent Circuit Court Standards

36

Several Approaches Accept plaintiff’s expert testimony with limitedAccept plaintiff s expert testimony with limited

scrutiny and ignore defense expert testimony Limited scrutiny, but consider all testimony Apply limited Daubert analysis Apply full Daubert analysis with or w/o separate

hearinghearing Resolve all disputed evidence regarding certification

including conflicting expert testimony

More rigorous approach better for both chance of exclusion of bad testimony and for communicating

37

exclusion of bad testimony and for communicating with court

Approaches evolving Good news is that some of worst authority y

overturned In re Visa Check/Master Money Antitrust Lit., 280

F 3d 124 (2d Cir 2001) was influentialF.3d 124 (2d Cir. 2001) was influential previously. District court “must ensure that the basis of the

expert opinion [for the certification issue] is not so flawed that it would be inadmissible as a matter of law ”matter of law. A district judge at the class certification stage

“may not weigh conflicting expert evidence or i ‘ t ti ti l d li ’ f t ”

38

engage in ‘statistical dueling’ of experts”

In re Initial Public Offering Sec. Lit. (“IPO”), 471 F.3d 24 (2d Cir. 2006)

“[W]e also disavow the suggestion in Visa Checkthat an expert’s testimony may establish a component of a Rule 23 requirement simply bycomponent of a Rule 23 requirement simply by being not fatally flawed. A district judge is to assess all of the relevant evidence admitted at the class certification stage and determine whether each Rule 23 requirement has been met, just as the judge would resolve a dispute , j j g pabout any other threshold prerequisite for continuing a lawsuit.” But IPO effect not entirely clear

39

But IPO effect not entirely clear

In re NYSE Specialists Sec. Lit., 260 F.R.D. 55 (S.D.N.Y. 2009)

“Even after the Court of Appeals’ decision in [IPO], which requires courts to evaluate all questions of fact that pertain to class certificationquestions of fact that pertain to class certification, even to the extent that such facts overlap with the merits, the proper role for a Daubert inquiry at the class certification stage remains limited bat the class certification stage remains limited by Rule 23 itself. At this stage, ‘ the Court may only examine the expert reports as far as they bear on the Rule 23 determination,’ []. Accordingly, this Court’s Daubert inquiry is limited to whether or not the [expert reports] are admissible to

40

ot t e [e pe t epo ts] a e ad ss b e toestablish the requirements of Rule 23.”

In re Hydrogen Peroxide Antitrust Lit., 552 F.3d 305 (3d Cir. 2009) “Expert opinion with respect to class certification like Expert opinion with respect to class certification, like

any matter relevant to a Rule 23 requirement, calls for rigorous analysis.” “It follows that opinion testimony should not be It follows that opinion testimony should not be

uncritically accepted as establishing a rule 23 requirement merely because the court holds the testimony should not be excluded under Daubert ortestimony should not be excluded, under Daubert or for any other reason.” “The district court may be persuaded by the

testimony of either (or neither) party’s expert withtestimony of either (or neither) party s expert with respect to whether a certification requirement is met. Weighing conflicting expert testimony at the certification stage is not only permissible; it may be

41

certification stage is not only permissible; it may be integral to the rigorous analysis Rule 23 demands.”

Fourth Circuit Approach Gariety v. Grant Thornton, 368 F.3d 356 (4th Cir.

2004) Rhodes v. E.I. DuPont De Nemours, 2008 WL

2400944 (S D W Va 2008)2400944 (S.D.W.Va. 2008) Recognizes Gariety in line with IPO and other recent authority,

but question of what inquiry into experts unresolved in 4th Circuit.D id t l f ll D b t l i d t h i Decides to apply full Daubert analysis and sets hearing.

In re Red Hat, Inc., Sec. Inv., 261 F.R.D. 83 (E.D.N.C. 2009)( ) Refuses to apply Daubert stating: “[t]he court does not mean to

suggest that a Daubert analysis can never be undertaken at the class certification stage and/or when merits discovery has not

42

g yoccurred. Under facts and circumstances, such an analysis may be warranted.

Blades v. Monsanto Co., 400 F.3d 562 (8th Cir. 2005)

District court denied defendant’s motion to apply Daubert and disregard plaintiff’s expert’s testimonytestimony District court considered all expert testimony

offered by both sides and afforded each such i ht d d i tweight as deemed appropriate.

Found that plaintiffs’ expert testimony did not show that impact could be demonstrated on a pclass wide basis. Circuit court affirmed district court’s denial of

class certification

43

class certification.

Blades v. Monsanto Co., 400 F.3d 562 (8th Cir. 2005)

“Appellants argue on appeal that the district court improperly resolved disputes between the parties’ experts that go to the merits of the case.parties experts that go to the merits of the case. We have stated that in ruling on class certification, a court may be required to resolve disputes concerning the factual setting of thedisputes concerning the factual setting of the case. This extends to the resolution of expert disputes concerning the import of evidence

i th f t l tti h iconcerning the factual setting-such as economic evidence as to business operations or market transactions.”

44

In re Zurn Pex Plumbing Products Liability Litigation, 2010 WL 1839278 (D.Minn. 2010) “Several district courts in the Eighth Circuit have Several district courts in the Eighth Circuit have

declined to engage in a full Daubert analysis at the class certification stage, considering only whether th t t ti i h l f l i d t i ithe expert testimony is helpful in determining whether the requisites of class certification have been met.” “The Eighth Circuit does not appear to expressly

require district courts to engage in a full Daubertinquiry at the class certification stage ” Citinginquiry at the class certification stage. Citing Blades. “Accordingly, the Daubert inquiry is tailored to the

45

purpose for which the expert opinions are offered”, e.g. class certification issues.

Drayton v. Western Auto Supply Co., 2002 WL 32508918 (11th Cir. 2002) “In addressing the statistical evidence proffered byIn addressing the statistical evidence proffered by

both parties’ experts the district court stated: ‘The parties in this case present a battle of statistical experts. The court finds it inappropriate to determine p pp pthe ultimate correctness of either parties contentions in the context of class certification.” “Appellants assert the district court ‘abdicated its dutyAppellants assert the district court abdicated its duty

to evaluate the reliability of [the expert’s] methodology’ and requests that we do so de novo. We will not do so. Appellants have presented no e ot do so ppe a ts a e p ese ted oauthority establishing a court must perform a Daubertinquiry of scientific evidence at this early stage of a class action proceeding. The district court indicated

46

p git will address this issue as this case progresses, which we find sufficient.”

American Honda Motor Co. v. Allen, 600 F.3d 813 (7th Cir. 2010)

[I] W P d i l S I 282 F 3d 93 ( h [I]n West v. Prudential Sec., Inc., 282 F.3d 935 (7th Cir. 2002), we held that a plaintiff cannot obtain class certification just by hiring a competent expert. We

h i d ‘A di t i t j d t d k h demphasized, ‘A district judge may not duck hard questions by observing that each side has some support…Tough questions must be faced and

l d id d if b h ldi id tisquarely decided, if necessary by holding evidentiary hearings and choosing between competing perspectives.’ Id.”“B t h t t ifi ll dd d h th “But we have not yet specifically addressed whether a district court must resolve a Daubert challenge prior to ruling on class certification if the testimony h ll d i i t l t th l i tiff ’ ti f ti f

47

challenged is integral to the plaintiffs’ satisfaction of Rule 23’s requirements.”

American Honda Motor Co. v. Allen, 600 F.3d 813 (7th Cir. 2010) (Cont.) “We hold that when an expert’s report or testimony is We hold that when an expert s report or testimony is

critical to class certification, as it is here, [], a district court must conclusively rule on any challenge to the

t’ lifi ti b i i i t liexpert’s qualifications or submissions prior to ruling on a class certification motion. That is, the district court must perform a full Daubert analysis before p ycertifying the class if the situation warrants.” “If the challenge is to an individual’s qualifications, a

court must make that determination [t]he court mustcourt must make that determination…[t]he court must also resolve any challenge to the reliability of information provided by an expert if that information i l t t t bli hi f th R l 23

48

is relevant to establishing any of the Rule 23 requirements for class certification.”

American Honda Motor Co. v. Allen, 600 F.3d 813 (7th Cir. 2010) (Cont.)

“[E]xpert testimony that is not scientifically reliable should not be admitted, even ‘at this early stage of the proceedings.”early stage of the proceedings. “Without [Expert’s] testimony, Plaintiffs are left

with too little to satisfy Rule 23(b)(3)’s d i ”predominance prong.”

Circuit Court vacated district court’s denial of Honda’s motion to strike and its order certifying a y gclass.

49

Dukes v. Wal-Mart Stores, 603 F.3d 571 (9th Cir. April 26, 2010)

“At the class certification stage, it is enough that [expert] presented scientifically reliable evidence tending to show that a common question of facttending to show that a common question of fact –i.e. ‘Does Wal-Mart’s policy of decentralized, subjective employment decision making operate to discriminate against female employees?’ –exists with respect to all members of the class.” “This he did and thus we find no error in theThis he did and, thus, we find no error in the

district court’s acceptance of [expert’s] evidence to support a finding of commonality.”

50

Dukes v. Wal-Mart Stores, 603 F.3d 571 (9th Cir. April 26, 2010) (cont.) “We are not convinced by the dissent’s argument We are not convinced by the dissent s argument

that Daubert has exactly the same application at the class certification stage as it does to expert t ti l t t t i l [] Htestimony relevant at trial. [] However, even assuming it did, the district court here was not in error. Thus we need not resolve this issue here.” “On this review, regardless of whether full Daubert

review is required at the class certification stage, we cannot say that admitting [expert’s] social frameworkcannot say that admitting [expert s] social framework analysis was an abuse of discretion.” “The district court specifically considered Daubert’s

51

applicability to [expert] and was within its discretion to limit its inquiry.”

Kennedy v. Jackson Nat. Life Ins. Co., 2010 WL 2524360 (N.D.Cal. June 23, 2010)

Refused to strike expert testimony Found it was “enough that [Expert] ‘presented

fscientifically reliable’ and relevant evidence tending to show the predominance of common question of fact concerning damages.” (citing q g g ( gDukes) Stated “[n]otably, the Dukes majority suggested,

but did not decide that Daubert may not havebut did not decide, that Daubert may not have ‘exactly the same application at the class certification stage as it does to expert testimony

i l ’”

52

at trial.’”

Takeaways Still divergent approaches in the different Circuit Courts Approaches have moved toward more rigorous analysis

of expert testimony Challenge to plaintiffs’ expert and use of defense expertChallenge to plaintiffs expert and use of defense expert

is an opportunity to demonstrate the difficulties of class proof and existence of individual issues

Regardless of standard court will apply these are useful Regardless of standard court will apply, these are useful strategies

Ultimate effectiveness of these strategies will vary with t hcourt approach

Understand the approach of the court you are in to maximize the effect (and continue to push for more

53

( prigorous analysis).

DaubertDaubert Strategies afterStrategies afterD k W lD k W l M tM tDukes v. WalDukes v. Wal--MartMart

Steven G. PearlSteven G. PearlThe Pearl Law FirmThe Pearl Law FirmThe Pearl Law FirmThe Pearl Law Firm

July 8, 2010July 8, 2010

DaubertDaubert is not Deadis not DeadCCin the Ninth Circuitin the Ninth Circuit

Courts will not decide the merits under Courts will not decide the merits under cover ofcover of DaubertDaubertcover of cover of DaubertDaubert

But courts must determine whether But courts must determine whether methods are valid and reliablemethods are valid and reliable

55July 8, 2010 The Pearl Law Firm

Plaintiffs’Plaintiffs’ DaubertDaubert StrategiesStrategiesPlaintiffs Plaintiffs DaubertDaubert StrategiesStrategies

Plaintiffs must recognize that defendants Plaintiffs must recognize that defendants likely will filelikely will file DaubertDaubert challenges tochallenges tolikely will file likely will file DaubertDaubert challenges to challenges to statistical and other expert evidencestatistical and other expert evidence

Many defendants will not limit these Many defendants will not limit these attacks to concerns regarding validity ofattacks to concerns regarding validity ofattacks to concerns regarding validity of attacks to concerns regarding validity of methods, but will use them to attack the methods, but will use them to attack the meritsmerits



Expert evidence must be thorough, Expert evidence must be thorough, rational and defensiblerational and defensiblerational, and defensiblerational, and defensible

Be prepared to show that defendants are Be prepared to show that defendants are trying to resolve merits issues, not trying to resolve merits issues, not certification issuescertification issues



What’s good for the goose is good for the What’s good for the goose is good for the gander: Be prepared to challengegander: Be prepared to challengegander: Be prepared to challenge gander: Be prepared to challenge defendant’s expert evidencedefendant’s expert evidence


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