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Posts Tagged ‘expert testimony’

I’m pleased to announce that I’ll be chairing the Fourth Annual ABA Regional CLE Program on Class Actions and Mass Torts, to be held on June 16, 2017 at the offices of the Bar Association of San Francisco.  This year’s program features four presentations on hot topics in class action and mass tort litigation from an expert group of practitioners, academics, in-house counsel, and judges.  See below for summaries of the four presentations, and click the link below to see the full brochure and to register.  Hope to see you there!

CLICK HERE TO REGISTER

Discovery Following the 2015 Federal Rules Amendments: What Does Proportionality Mean in the Class Action and Mass Tort Contexts?

It’s been about a year and a half since the amended Federal Rules of Civil Procedure went into effect, including amendments relating to proportionality governing both the scope discovery under Rule 26(b)(1) and preservation of potentially relevant ESI. But have the new rules changed the discovery available and relative obligations in class actions, mass torts, and other complex matters? This panel will review the purposes underlying the 2015 Amendments and how the law has been developing so far, and it will offer insights into best practices in expanding or limiting discovery in the class action and mass tort contexts.

Killer Class Actions or Endangered Species?

The United States Supreme Court has in recent years addressed an unprecedented number of issues related to class actions, ranging from “no injury” class actions to “trial by formula.” The panel of experienced class action practitioners will discuss the changing class action landscape and the potential lasting impact.

The Use of Expert Evidence in Class Actions: Effective Strategies and Pitfalls

The importance of expert testimony in class actions continues to increase, for example in connection with measuring class wide effects and satisfying class certification gate-keeping threshold questions. Topics to be discussed include 1) use of surveys in consumer class actions, when they are effective and how they can influence a case; 2) what can be learned from rare successful challenges about the utility of Daubert challenges in class action cases; 3) the challenges associated with the increasing technical requirements for class certification and implications of the importance of expert evidence on cases; 4) lessons learned and experience working with experts in class action matters.

Big Brother, Information Privacy, and Class Actions: How Big Data and Social Media are Changing the Class Action Landscape

Almost everyone has a smart phone these days, even your grandparents have social media accounts, and the amount of personal information that is generated about the average consumer on a daily basis is astronomical and growing exponentially. This panel will explore ways in which the emergence of big data and social media are impacting consumer class actions. Topics to be discussed include 1) consumer class actions that may arise from companies’ collection, use, or transfer of large amounts of consumer data; 2) changing attitudes on privacy of consumer data in the age of social media; and 3) the benefits and pitfalls of using social media and internet advertising in class action notice programs.

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Price Waterhouse Coopers recently published an interesting study entitled Daubert challenges to financial experts, a yearly study of trends and outcomes, 2000–2015 (click the link to download a copy).

The study includes citations to recent opinions on the subject, along with practical insights from attorneys, including yours truly.  It concludes with a variety of useful statistics on the outcomes of Daubert challenges to financial experts, including the types of cases in which the change is made, the types of experts excluded, the jurisdictions in which exclusion rates are higher or lower, and the reasons for exclusion, among other things.  The study includes information on Daubert challenges in the class certification context that will no doubt prove useful in dealing with other types of experts as well as financial experts.  Be sure to check it out!

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I’m very excited to be speaking at a Strafford Publications CLE webinar tomorrow entitled: Statistics in Class Action Litigation: Admissibility, Expert Witnesses and Impact of Comcast v. Behrend.   The program is scheduled for June 18, 2013 at  1:00pm-2:30pm EDT.  This is the third iteration of this presentation, which has been updated to offer insights in light of the Supreme Court’s Comcast decision earlier this term.  Brian Troyer of Thompson Hine in Cleveland and Justin Hopson and Rick Preston from Hitachi Consulting in Denver will be co-presenting.  Below is a synopsis of the program.  Click here for more information and to register:

Class certification standards have become more rigorous, and the skillful use of statistical evidence is an important part of class actions. Effectively employing or challenging statistics can make a difference in winning or losing a class certification motion.

Statistical evidence is introduced through expert witness testimony, and Daubert challenges may be an effective strategy. This raises the issue of the scope of the court’s inquiry into the merits at the class certification stage.

The 2011 Wal-Mart v. Dukes Supreme Court ruling underscored the prominent role of statistical evidence in assessing the merits at the certification stage. The Court’s recent Comcast v. Behrend ruling reinforces Dukes regarding merits assessments at class certification, thus impacting the continued role of statistical evidence.

Listen as our experienced panel examines statistical evidence in certification proceedings, the impact of Comcast v. Behrend and related case law, and best practices for using statistics and cross-examining witnesses.

Outline

  1. Role of statistical evidence in support of class certification
  2. Expert testimony and Daubert analysis at class certification stage
  3. Impact of Comcast v. Berhrend and Wal-Mart v. Dukes
  4. Science of statistics and cross-examining the statistics witness

Benefits

The panel will review these and other key questions:

  • What is the impact of Comcast and Dukes upon the use of statistical analysis at class certification?
  • What strategies can counsel use to effectively cross-examine statistics witnesses?
  • What types of statistics can be introduced and what are the proper ways to utilize statistics?

Following the speaker presentations, you’ll have an opportunity to get answers to your specific questions during the interactive Q&A.

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The United States Supreme Court issued its decision in Comcast Corp. v. Behrend, No. 11-864 today.  In a 5-4 decision, the Court held that the class of cable subscribers had been improperly certified.  Justice Scalia, writing for the majority, reasoned that the expert testimony offered by the plaintiff to show that antitrust damages were capable of class-wide proof addressed alleged damages that did not logically flow from the plaintiff’s theory of class-wide liability.  The majority held that the trial court had erred by refusing to consider questions concerning the expert testimony on damages that might overlap with the “merits,” while the Third Circuit had erred by accepting the plaintiffs’ contention that it had a class-wide theory of damages through expert testimony without actually scrutinizing the factual basis for that contention:

The Court of Appeals simply concluded that respondents “provided a method to measure and quantify damages on a classwide basis,” finding it unnecessary to decide “whether the methodology [was] a just and reasonable inference or speculative.” 655 F. 3d, at 206.  Under that logic, at the class-certification stage any method of measurement is acceptable so long as it can be applied classwide, no matter how arbitrary the measurements may be.  Such a proposition would reduce Rule 23(b)(3)’s predominance requirement to a nullity.

The dissenting Justices would have dismissed the writ of certiorari as having been improvidently granted.  The dissent’s criticism of the majority’s holding has more to do with the procedural posture of the case and the methodology used by the majority in reaching its factual conclusions than with the legal class certification concepts underlying the majority’s reasoning.  In particular, the dissent faulted the majority for having changed the issue on review after the conclusion of briefing and took issue with the majority’s analysis of the factual basis for the expert’s opinions.

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This is the last of six posts summarizing my notes of the six presentations at the ABA’s 16th Annual Class Actions Institute held in October in Chicago.  For more on this excellent conference, see my October 31, November 5, November 6November 18, and December 3 CAB posts.

This year’s Institute was capped off by a presentation and demonstration entitled: “Preparing Early and Often,” State-of-the-Art Strategies for Managing Class Action Experts.  Andrew J. McGuiness moderated the panel, which consisted of expert economists Dr. Janet S. Netz and Dr. James Langenfeld, attorneys Mary Jane Fait and Laurie A. Novion, and U.S. District Court Judge Gerald E. Rosen.  The panel’s insightful tips were highlighted by vignettes in the form of mock examinations of the two experts. 

Daubert analysis of proposed expert testimony is required at the class certification, a question on which the Supreme Court may shed some light when it rules on Comcast v. Behrend later this term.  At the moment, circuits that require a Daubert analysis include the Fourth, Seventh, Ninth, and Eleventh Circuits.  The Sixth and Eighth Circuits have both adopted a Daubert-lite standard, while the Fifth Circuit has taken a “Daubert Maybe ” or “Daubert I don’t know” approach to the question.

The vignettes illustrated some of the key potential lines of attack on a plaintiff’s or a defendant’s expert’s opinions presented in support of or in opposition to class certification.  They include (but are not limited to): 1) whether the expert relied on a reliable dataset; 2) whether there is a formulaic basis for calculating damages; 3) whether there are any inconsistencies between the defendant’s own transactional data and outside data, such as market research data; 4) whether any individual variation in the data can be explained in a systemic way; and 5) whether a regression analysis or other analytical model is a valid way of evaluating the data or its causal connection to the defendant’s alleged misconduct.

Both the vignettes and the panelists’ observations served to reinforce how important it is for the lawyer to present an expert’s testimony in a way so that the judge understands the evidence.

One key practice tip offered by the panel was to consider using a consulting expert before turning to a testifying expert.  This way, different models or modes of analysis can be tested without fear of tainting the conclusions of the testifying expert or unnecessarily exposing the testifying expert to impeachment or cross-examination. 

However, that does not mean that it is not necessary to make full disclosure to the testifying expert about the material facts and legal issues in the case.  A common frustration that experts have with lawyers is they oftentimes fail to provide a fair and clear picture of the facts or applicable law, leading the expert to an opinion that is at odds with the facts or irrelevant to the issues in the case.  At minimum, this can put the expert in an awkward position and undermine the attorney’s client’s chances for success.  At worst, it can both lead to an adverse decision and cause undeserved and lasting damage to the expert’s professional reputation.

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My partner, Bob Abrams, sent me a copy of the order granting Plaintiffs’ Renewed Motion for Class Certification in Allen v. Dairy Farmers of America, an antitrust class action brought on behalf of dairy farmers alleging monopolization and a conspiracy to fix milk prices by various milk cooperatives and processors.  Abrams’ team has been appointed as class counsel for one of the subclasses certified as part of the order. 

The opinion includes an interesting analysis of at least two important issues: First, the extent to which intra-class conflicts of interest can prevent class certification and the extent to which the creation of subclasses can remedy those conflicts; and Second, the extent to which a defendant can avoid class certification in an antitrust case by pointing out alleged flaws in the plaintiffs’ expert’s opinion that a common, class-wide antitrust injury exists or by presenting conflicting expert testimony.  The second issue is one that may be clarified when the Supreme Court rules later this term on Comcast v. Behrend.

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Forbes columnist Daniel Fisher has authored an excellent preview of the three class-action-related cases set to be decided by the U.S. Supreme Court this term.  The article, entitled Class-Action Lawyers Face Triple Threat At Supreme Court, previews the issues in each of the three cases and summarizes what’s at stake for class action lawyers.  The article points out that although the three decisions have potential to spell disaster for class action plaintiffs given the conservative majority in the Supreme Court, two of the three class-action-related decisions last term came out in favor of the plaintiffs.  I highly recommend this article, as well as Fisher’s work more generally.

For quick reference, the three cases set for decisions on class action issues this term, and the questions presented for review, are as follows:

Comcast v. Behrend, No. 11-864 – “Whether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.”

Standard Fire Insurance Co. v. Knowles, No. 11-1450 – “When a named plaintiff attempts to defeat a defendant’s right of removal under the Class Action Fairness Act of 2005 by filing with a class action complaint a ‘stipulation’ that attempts to limit the damages he ‘seeks’ for the absent putative class members to less than the $5 million threshold for federal jurisdiction, and the defendant establishes that the actual amount in controversy, absent the ‘stipulation,’ exceeds $5 million, is the ‘stipulation’ binding on absent class members so as to destroy federal jurisdiction?”

Amgen Inc. v. Connecticut Retirement Plans, No. 11-1085 – “1. Whether, in a misrepresentation case under SEC Rule 10b-5, the district court must require proof of materiality before certifying a plaintiff class based on the fraud-on-the-market theory.  2. Whether, in such a case, the district court must allow the defendant to present evidence rebutting the applicability of the fraud-on-the-market theory before certifying a plaintiff class based on that theory.”

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