Litigation: Are plaintiffs required to submit admissible evidence in support of class certification?

In Comcast Corp. v. Behrend, the Supreme Court could raise the evidentiary bar for plaintiffs attempting to demonstrate “commonality”

Last year, the Supreme Court issued its landmark decision in Wal-Mart Stores, Inc. v. Dukes, ruling that an “expansive” class of plaintiffs could not pursue their employment discrimination claims collectively against Wal-Mart. In so holding, the court explained that in a class action, “a party seeking class certification must affirmatively demonstrate his compliance with [Federal Rule of Civil Procedure 23],” including being able “to prove that there are in fact… common questions of law or fact” capable of class-wide resolution.

In a pair of cases this term, the court continues to focus on the contours of Rule 23’s class-certification requirements. One of those cases, Comcast Corp. v. Behrend, takes up an important question left open by Dukes: whether the district court must decide, at the class-certification stage, whether plaintiffs’ expert testimony purporting to demonstrate “common questions of law or fact” is admissible—and, specifically, whether such expert testimony must be subjected to a full analysis under Daubert v. Merrell Dow Pharmaceuticals, Inc. As the court stated in its reformulation of the question presented, the Comcast decision will address whether “a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.”

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Matthew Brown

Matthew D. Brown is a partner in Cooley LLP’s Litigation Department in San Francisco and a member of the firm’s Privacy, Commercial Class Action Litigation,...

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Christopher Durbin

Christopher B. Durbin is a partner in Cooley LLP’s Litigation Department in Seattle and a member of the firm’s Commercial Class Action Litigation, Securities Litigation,...

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Abby Pringle

Abby Pringle is an associate in Cooley LLP’s Litigation Department in San Francisco. Ms. Pringle practices complex commercial litigation with a focus on consumer class...

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