Cosmetics giant Maybelline markets Superstay 24 lipstick, which is supposed to be more comfortable, withstand heat and humidity, and go 24 hours without needing a transfer. Some customers decided that, despite the advertising, the lipstick did not last a full 24 hours without transfer; so they sued Maybelline claiming that it had violated various
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Supreme Court reinforces predominance standard – Comcast Corp. v. Behrend
By The Editors on
Posted in Certification
Yesterday, the Supreme Court issued its opinion in Comcast Corp. v. Behrend, the antitrust case which commentators (including me) had expected would finally resolve the question of whether a trial court must apply the Daubert evidentiary standard to expert testimony in a certification debate. It turns out we were wrong. Due to a…
At Argument, Supreme Court Struggles with Fact-Finding
By The Editors on
Posted in Certification
On Monday, the Supreme Court heard arguments in two different class actions, united by a common problem.
The first, Comcast Corp. v. Behrend, asked whether a trial court should hold plaintiffs to the Daubert standard for expert testimony at class certification, a question that has divided federal circuits for several years. Due in…
No Shortcuts Under Rule 23 – Gates v. Rohm & Haas Co.
By The Editors on
Posted in Certification
The last few weeks have been exceptionally busy for appellate decisions involving class actions. In addition to Judge Easterbrook’s In re Aqua Dots opinion, the Sixth Circuit’s Pipefitters opinion, the Second Circuit’s Literary Works opinion, and the Ninth Circuit’s reversal of the Bluetooth settlement, the Third Circuit has offered up a pair of opinions…
In re Zurn Pex – Daubert and Class Certification
By The Editors on
Posted in Certification
One of the key issues that many (including me) assumed would be resolve in Wal-Mart v. Dukes was the question of what kind of Daubert inquiry would be necessary at the class certification stage.
The 1993 case Daubert v Merrell Dow Pharmaceuticals, Inc., involved a challenge to the longstanding "general acceptance" test for scientific…
Sher v. Raytheon Co. – The Necessity of Picking a Winner
By The Editors on
Posted in Certification
A group of Florida landowners sued Raytheon Company, accusing it of contaminating their groundwater by improperly disposing of hazardous waste. The plaintiffs put up an expert who testified that he could construct a statistical model that would demonstrate liability and damages on a classwide basis. Raytheon put up its own experts, who argued that plaintiffs’…
A Little More on Wal-Mart v. Dukes
By The Editors on
Posted in Certification
If you’ll forgive the second piece of self-promotion in a week: the Washington Legal Foundation (which keeps the always-interesting Legal Pulse blog) has just published a Legal Opinion Letter evaluating several of the arguments in favor of overturning the 9th Circuit’s Dukes v. Wal-Mart decision, written by yours truly.
I’ll be participating in a…
Challenging Class Action Experts – Walsh v Principal Life Ins Co
By The Editors on
Posted in Certification
The tactic is more common that one might imagine: when plaintiffs file their motion for certification, they may include an expert report from a noted law professor, testifying that their case is ideally suited for certification under Rule 23. Now, on one side of the certification debate, you have practicing lawyers zealously representing their client…
Classic Cases – In re Hydrogen Peroxide
By The Editors on
Posted in Certification
In re Hydrogen Peroxide was an antitrust class action. Hydrogen peroxide is a chemical that is often used a bleach for pulp and paper. In this case, the plaintiffs, all purchasers of hydrogen peroxide and other chemicals, sued their suppliers, alleging that the defendants had sold them more expensive chemical grades when less expensive ones…