Expert Analysis of Class Certification Issues*
The Supreme Court's recent ruling in Wal-Mart Stores, Inc. v. Dukes1 culminated a trend among appeals courts to require a more rigorous analysis of the requirements for class certification. Historically, courts were reluctant to delve into the merits of a case at the class certification stage, citing Eisen v. Carlisle & Jacquelin, a case that had been interpreted by some to instruct courts to avoid merits evaluation at the class certification stage.2 Several more recent appellate rulings, however, required courts to resolve issues related to the merits of the case to the extent that the issues touch on Rule 23 requirements (discussed in Section 13.2 of this chapter).3 Dukes removed any doubt that courts will now require a rigorous analysis of the merits to the extent that they affect Rule 23 requirements.
This change increases the importance of expert testimony at the class certification stage. No longer can plaintiffs simply make a “threshold showing” that they have satisfied Rule 23, nor can judges refrain from resolving the “battle of the experts.”4 The trier of fact must consider and reconcile the opinions of both plaintiff and defense experts to the extent that they relate to class certification.5
In addition to changes in the law that increase the importance of expert witnesses in class actions at the class certification stage, the number ...