Colorado litigators, I hope you will consider attending our next Class Action Subsection Luncheon scheduled for next Thursday, June 30, 2011 at noon. The topic is “Statistics in the Courtroom.” I will be presenting the law, and my co-presenter, Justin Hopson of Hitachi Consulting, will be presenting the science. Among other things, we will analyze the Supreme Court’s treatment of statistical evidence in the recent Wal-Mart Stores, Inc. v. Dukes decision. I hope you can make it. A program description follows.
CBA – Class Action Sub-Section LUNCHEON
CBA Offices, 1900 Grant Street, 9th Floor,
Executive Conference Room Denver, CO 80203
Thursday, June 30, 2011
Topic: “Statistics in the Courtroom”
As the standards of proof for class certification have become more rigorous over the past few years, the use of statistical evidence in class certification proceedings has become a growing trend. For the practitioner, this means that knowing when and how to use statistics can be the difference between winning and losing a class certification motion.
In Part I of this Program, Paul Karlsgodt of Baker Hostetler will discuss the legal principles involved and case law dealing with the admissibility and use of statistics in the courtroom, especially in class certification proceedings.
In Part II, Justin Hopson of Hitachi Consulting will discuss the types of statistics that can be used in the courtroom, what statistics mean, how statistics can and cannot not be used, and tips for cross-examining statistics experts.
1 General CLE Credit Applied for.
Registration for the Luncheon begins at 11:30 a.m.
The Luncheon will begin at 12:00 PM.
To RSVP for the Luncheon:
Call 303.860.1115, X727 or SEND AN E-MAIL TO LUNCHES@COBAR.ORG, PLEASE INCLUDE YOUR NAME AND Class Action luncheon in your e-mail.
Please register by Wednesday, June 29, 2011, Noon.
If sending a check please make it out to Colorado Bar Association, Class Action Sub Section, 1900 Grant Street, Suite 900, Denver, CO 80203. Please also call or e-mail in your reservation when sending a check.
**Cancellations can be made only by calling 303.860.1115, X727 or by e-mail to mailto:lunches@cobar.org.**
Cancellations after Wednesday, June 29, 2011, Noon, will be responsible for payment.
The cost of the luncheon is $15.00 for Litigation Section members, $25.00 for Non-Members. Vegetarian meals must be requested when making reservation.
Call-in option will be $5, please RSVP to lunches@cobar.org, and indicate that you would like to call-in. Instructions for the call-in will be sent out before the luncheon.
Thoughts on Wal-Mart Stores, Inc. v. Dukes
Posted in Class Action Decisions, Commentary, Employment Class Actions, Federal Civil Procedure, Supreme Court Decisions, tagged adverse impact, class certification, daubert, dukes, employment class action, expert witness, ginsburg, rigorous analysis, rule 23, scalia, statistical evidence, statistical proof, Supreme Court, wal-mart on June 20, 2011| 9 Comments »
Many commentators correctly that the decision in Wal-Mart Stores, Inc. v. Dukes would be favorable to business interests. However, unlike the Court’s earlier decision in AT&T Mobility v. Concepcion, the decision does not necessarily threaten to sound a death knell for class actions or even a particular category of class actions. Instead, the decision merely clarifies the standards on which future class actions are to be evaluated in the federal courts, but it does so in a way that is likely to impact class actions in many areas of the law outside of the employment law context. Here are some of the key issues on which the opinion will undoubtedly be cited in the future, and some thoughts on the potential impact of the decision on each issue.
1) Standard of review – The majority’s decision clarifies a long-standing misconception about the ability of a federal court to consider questions relating to the merits of a case in the class certification phase. For more than 30 years, plaintiffs’ counsel and many courts have cited the Court’s opinion in Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) as prohibiting any examination of the plaintiffs’ claims on the merits at the class certification phase. Consistent with the majority trend in the lower federal courts, the Supreme Court’s decision in Wal-Mart Stores, Inc. confirms that a court should consider and resolve any issues of fact that are necessary to determine whether one or more elements of Rule 23 are satisfied, regardless of whether those issues may overlap or be identical to one or more issues to be decided in ruling on the merits of the plaintiff’s claims.
2) Evaluation of Expert Testimony – The majority decision makes clear that it is appropriate for a federal court to conduct a Daubert analysis to consider the reliability and helpfulness of expert witness opinions at the class certification phase. It is no longer sufficient for a plaintiff to present expert testimony and then argue that the Court may find that testimony reliable at some later point in the proceedings. Again, in keeping with te trend among the federal circuit courts, the Court’s analysis in Wal-mart Stores, Inc. makes clear that the reliability and relevance of expert testimony proposed as “common proof” should be evaluated before granting class certification.
3) Use of Statistical Evidence in Support of Class Certification – The majority’s decision leaves open the possibility that statistical evidence might be used in establishing the existence of common proof in certain cases, but it sets a high standard for when proffered statistical evidence can be considered as adequate proof of the existence of “common issue.” Significantly, Part III of Justice Scalia’s opinion, which was joined by all 9 justices, disapproves of the “Trial by Formula” approach to class actions, in which a sample of claims is tried on the merits, and the results of that sample are then applied proportionally to the claims of the entire class.
4) Certification of Claims Seeking Monetary Relief Under FRCP 23(b)(2) – This is perhaps the most uncontroversial aspect of the opinion in that part of the unanimous holding of the Court. The Court’s holding is also straightforward, at least conceptually: claims for monetary relief may not be certified under FRCP 23(b)(2) unless they are merely incidental to injunctive or declaratory relief being requested on behalf of the class as a whole. However, the devil may be in the details, as future courts (especially outside the employment law context) will be left with the task of defining what monetary relief is “incidental” to injunctive or declaratory relief and what is not.
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