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Posts Tagged ‘expert witness’

It’s not too late to sign up for next Wednesday’s Strafford Publications Webinar, Statistics in Class Action Litigation: Admissibility, Expert Witnesses and Impact of Wal-Mart v. Dukes.  Click the link on the title of the program for more information and to sign up.

For anyone looking for sneak preview, here are the program slides, which were are the result of the joint efforts of my co-presenters, Brian Troyer of Thompson Hine and Rick Preston of Hitachi Consulting, and me.  We hope you can make it!

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I’m not sure that WordPress site statististics would be admissible in a class action as proof of readers’ interest, but the recent CAB site stats do appear to show some level of interest in the topic of statistics in class actions. 

So, readers may be interested in an upcoming Strafford Publications webinar in which I will be participating on May 23, 2012, entitled Statistics in Class Action Litigation: Admissibility, Expert Witnesses and Impact of Wal-Mart v. Dukes.  For those of you who think that title sounds familiar, this is an update of a Strafford webinar held last year shortly after the Dukes decision was announced.  Find out if our predictions then were at all close to the mark. 

Here’s a link to the Strafford page for the webinar, where you can get more information and register:

http://www.straffordpub.com/products/statistics-in-class-action-litigation-admissibility-expert-witnesses-and-impact-of-wal-mart-v-dukes-2012-05-23

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I’m very excited to be speaking at an upcoming Strafford Publications CLE webinar entitled: Statistics in Class Action Litigation: Admissibility and the Impact of Wal-Mart v. Dukes.   The program is scheduled for Thursday, October 6, at  1:00pm-2:30pm EDT.  This is a beefed up version of a presentation that Justin Hopson and I did for the Colorado Bar Association class actions subsection earlier this year.  Brian Troyer of Thompson Hine in Cleveland will be joining us this time around.  Here’s a synopsis of the program, followed by a link to the registration page:

As class certification standards have become more rigorous, the use of statistical evidence in certification proceedings has become an integral part of class action litigation. Effectively using or challenging statistics can be the difference between winning and losing a class certification motion.

Since statistical evidence is introduced through expert witness testimony, 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 prominent role of statistical evidence in class certification is underscored in Wal-Mart v. Dukes. The Court weighed in on both the level of statistical proof to sustain certification as well as the appropriate standard for a Daubert analysis.

My fellow panelists and I will provide class action counsel with a review of the Court’s treatment of statistical evidence and expert testimony in Wal-Mart v. Dukes, discuss admissibility and use of statistics in certification proceedings, and outline strategies for using statistics and cross-examining statistics witnesses.

We will offer our perspectives and guidance on these and other critical questions:

  • How did the Supreme Court in Wal-Mart v. Dukes address the level of Daubert analysis at the class certification stage?
  • What types of statistics can be introduced and what are the proper ways to utilize statistics?
  • What strategies can counsel use to effectively cross-examine statistics witnesses?
  • What are the recent trends in the use of statistical evidence to support a class certification motion?

After our presentations, we will engage in a live question and answer session with participants — so we can answer your questions about these important issues directly.

I hope you’ll join us.

For more information or to register, click here

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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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