Daubert v. Merrell Dow Pharms.

The class action plaintiffs’ bar celebrated yesterday’s Supreme Court’s decision in Tyson Foods, Inc. v. Bouaphakeo (pdf), rejecting Tyson’s challenge to class certification. One lawyer called it “a huge David v. Goliath victory.”

But when plaintiffs’ lawyers wake up this morning and focus on the details of the Court’s opinion, they are in for a serious post-celebration hangover.

The Court’s reasoning for the first time maps a clear route for defendants to use in challenging plaintiffs’ use of statistical evidence in class actions. It also provides important guidance for defendants about preserving the ability to challenge plaintiffs’ reliance on statistics.

Continue Reading What does Tyson Foods, Inc. v. Bouaphakeo mean for class actions?

The Supreme Court on Tuesday heard oral argument in Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146, a case that has been closely watched for its potential to narrow the circumstances in which a class action may be certified under Federal Rule of Civil Procedure 23 and a collective action for unpaid wages certified under the Fair Labor Standards Act (FLSA). We previously described this case in prior blog posts. One of us attended the argument, and the other closely reviewed the transcript (pdf). Our combined reaction: The anticipated decision in this case may focus on an FLSA issue and, if so, then it seems unlikely to mark a sea change in the rules governing Rule 23 class actions. Continue Reading Supreme Court Hears Argument in Tyson Foods v. Bouaphakeo—and a Blockbuster Class Certification Ruling Seems Less Likely

In the battle over class certification, expert testimony proffered by both plaintiffs and defendants is playing an increasingly important role. The Supreme Court has not yet decided whether the test for admissibility of expert testimony announced in Daubert v. Merrell Dow Pharmaceuticals applies at the class-certification stage, although it has certainly dropped hints to that effect, including in Wal-Mart Stores, Inc. v. Dukes. In our view, it’s only a matter of time before the Supreme Court expressly holds that Daubert applies to expert testimony offered in support of or opposition to class certification.

Accordingly, defendants should pay careful attention to Daubert’s standards—both in bolstering their own experts and in attacking the experts put forward by plaintiffs. The wisdom of doing so was recently underscored by the Ninth Circuit’s sharply-divided en banc decision in Estate of Barabin v. AstenJohnson, Inc. (pdf). As my colleagues Evan Tager and C.J. Summers explain in a recent alert, Barabin “significantly strengthened and expanded the gatekeeper role of both trial and appellate courts in determining whether to admit expert testimony.” Their discussion of Barabin is well worth reading for all class-action practitioners.

Although the class action bar in general is eagerly awaiting the Supreme Court argument in Comcast Corp. v. Behrend (No. 11-864)—which will be argued November 5th—antitrust practitioners in particular have a keen interest in the case. The issue presented is whether a district court may certify a class action without first resolving whether an expert witness’s testimony that the case can be tried on a class-wide basis passes muster under Daubert, the standard for admissibility at trial.
Continue Reading Comcast Corp. v. Behrend: Upcoming Supreme Court Case Is Critical to Antitrust Class Actions