Class Certification Requires an “F-Bomb” - Be First, Be Firm, and Be Focused.
Class action litigators know: denial of class certification is usually a fatal blow. Taking cases on an individual basis drops the potential for fees significantly while increasing the workload exponentially—meaning that if you lose the certification battle, it will likely cost you the war. So, how do you prepare for battle? Train and test your expert “rigorously”; sharpen your theory; then drop the “F Bomb”—be first, be firm, and be focused.
Be the first out of the gate. Come out swinging. Let your expert fire away and frame up the issues. A recent series of United States Supreme Court cases, as well as district and circuit court cases popping up in their aftermath, have established a trend. Examination of experts at the class-certification stage is no longer a “breathe-in deeply, now breathe-out” examination. Many courts are scrubbing in and requiring a “rigorous” full-blown Daubert evaluation. See Trial-Quality Expert Testimony . . . for Class Certification? (May 2015). So, be ready. Find the right expert early, immediately, as soon as possible; get her immersed in the critical issues and nuances of your class action; and then test her. Walk through the Daubert (or other applicable) criteria with your expert and your litigation team. Cross check your expert against similar experts in the field. Prepare your expert for battle, and be the first to strike.
You not only need to strike first with the best expert possible, but you also need to make sure that you have the best theory possible. Once you find it, plant your feet firmly, and stick with it. Courts have recently emphasized not only the quality of the expert but also the importance of setting out the correct theory of class appropriateness very early on. The pressure that early expert disclosure deadlines pose in class actions can make this challenging, but courts have lambasted classes for changing theories of class appropriateness during the course of the litigation, finding it tantamount to “changing horses midstream.” See Genereux v. Raytheon Company, No. 13-1921 (1st Cir. Jun. 10, 2014). The practical impact, then, is not only to meet deadlines but also to ensure that you are utilizing the best possible theory to support or attack class appropriateness in your case and maintain that theory. Build your best theory, and hold firm. You may find it beneficial to retain a secondary consulting expert to have a second set of analytical “eyes” when formulating and testing your arguments and theories. Also, if you are arguing for class certification, ensure that your expert uses a common methodology applicable to the class and/or that damages calculations are formulaic. Remember, damages may play a more significant role in class actions than they have in the past, based on the Supreme Court’s opinion in Comcast.
While courts are requiring a “rigorous” evaluation of experts at the class-certification stage, remember that this is an examination only of the appropriateness of the class for certification, not the global issues of the class action as a whole. Some litigators, particularly those who are new to class actions or to the need for expert testimony to establish class appropriateness, are likely to attempt a “mini trial” at the class-certification stage. More seasoned litigators will recognize that the purpose experts serve in class certification is only to establish the appropriateness (or lack thereof) of the class-action mechanism. The Supreme Court specifically recognized that the trial court may consider the merits at class certification but only to the extent that those merits are tied to Fed. R. Civ. P. 23. See Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 133 S. Ct. 1184, 1195 (2013).
Use this limit to your advantage. Be focused. Limit the scope of examination for your expert (either in testimony or otherwise) to class-related issues only. If opposing counsel attempts to venture into the merits of the case without a relevant connection to class certification, you should either (a) attempt to limit the admission of that information at the class-certification stage or (b) use the information gleaned to lock your opponent to a particular theory of the case. Knowing that courts are wary of litigants who “change horses midstream,” you can use this precedence to restrict your opponent’s ability to later test new theories of case merit that conflict with the theory he posed at the class-certification stage.
Want to keep your expert tactics on target? Join the BullsEye debate. Let us hear it, litigators. Are you seeing a trend toward “rigorous” evaluation at the class-certification stage? Any thoughts on best practices in preparing for class certification?