Class Certification: Analyzing the Class

Several Supreme Court and circuit court rulings have refocused litigators’ attention on emerging issues associated with class actions – in particular, the process of certifying classes.


The decisions in Wal-Mart Stores, Inc. v. Dukes et al. and Erica P. John Fund, Inc. v. Halliburton Co., for instance, raised important questions about the prerequisites of Rule 23 (which governs the procedures and conduct of class action suits) and the effective use of statistics and expert testimony in the context of class certification. 

Our consultants and academic affiliates have been exploring these and other class certification questions, and serving as experts in this area, for many years. In recent case work, presentations, and published articles, we have discussed issues such as the existence of commonality, and the appropriate use and limitations of common methods of proof. 


Learn more about our Class Certification expertise and casework, and download our Class Certification brochure. 

Recent Engagements, Publishing 

We have been exploring class certification topics in recent articles, papers, and chapters.

Dispute Scenarios


We have worked on a number of high-profile matters involving antitrust, securities and financial services, false advertising, and mass tort issues.

Antitrust

Certification Reversed in Microsoft Canada Matter

We worked on behalf of Microsoft Corporation in a matter that resulted in the rare reversal of a class certification decision in Canada. Retail buyers alleged that Microsoft and manufacturers tried to exclude competition, raise prices, and pass on overcharges at the OEM level to retailers. The plaintiffs believed they had a course of class action based on their claims that costs were being passed on. The justices disagreed and dismissed the action.
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False Advertising

Class Denied in Case Involving Snapple “All Natural” Beverages

We provided expert testimony and damages analysis in a class action involving Snapple Beverage Corporation. The company was alleged to have misled consumers and caused economic injury by marketing certain Snapple drinks as being “All Natural” when they contained high-fructose corn syrup. We examined pricing-related documents and sales data and concluded that injury could not be determined by common proof.
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Securities

Class Denied in Securities Matter Involving Royal Bank of Scotland

We supported The Royal Bank of Scotland Group in a high-profile class action ruling in which class certification was denied to a group of large institutional investors who alleged that RBS omitted facts and made untrue statements about the underwriting standards and practices followed by its mortgage originators. The judge concluded that “because the defendants could offer evidence of widely different levels of sophistication and knowledge among investors in the putative classes, individual issues predominated over class issues.”
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Mass Tort

Establishing Common Method of Proof in Pharmaceuticals Dispute

For a blockbuster drug with an ongoing market presence, we analyzed the economic underpinnings of commonality and typicality arguments. We showed that causation and damages assessments could not reliably be based on common methods of proof for the entire class based on our examination of factors including patient demographics, medical profiles, medical injury, and drug usage. We used third-party market research data (for instance, IMS, Scott-Levin, MMI) to develop our analyses.
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Expert Insights: Assessing Damages at the Class Level 

Can Economic Damages be Assessed at the Class Level? 		    

Edward SnyderIn the case of an alleged overcharge…I would determine whether a common method of proof exists that would allow me to confirm that most or all plaintiffs had been impacted by the defendant’s bad behavior and if so, to what extent. Packaged Content Right Quote Red 

– Edward Snyder, Yale University Dean and Analysis Group Affiliate