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S8 | Tuesday, sepTember 8, 2015 | Litigation | nylj.com

Class Action Trends
in the Wake

Of ‘Wal-Mart’and ‘Comcast’

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tlement of claims brought against asbestos Amchem rule. In the case of Sullivan v. DB that, even the possibility that certain absent
By MiTchell c. Shapiro
manufacturers. while certain named plaintiffs Invs., 667 f.3d 273, 302-03 (3d Cir. n.J. 2011) class members had not suffered injury would
alleged they had already suffered physical (en banc), cert. denied, 132 s. Ct. 1876 (2012), not prevent certification of a settlement class,
T he u.s. supreme Court dealt with issues of injury, others did not allege physical injury, the circuit court reminded that the “concern and predominance requirement did not man-
class action certification in two separate claiming that they had been exposed but had for manageability that is a central tenet in the date a formula for classwide measurement of

cases earlier this decade, Wal-Mart Stores
not yet manifested any signs of asbestosis or certification of a litigation class is removed damages. In re Deepwater Horizon, 739 f.3d
v. Dukes1 and Comcast v. Behrend.2 the deci- other complications from asbestos exposure. from the equation.” In that case, the court 790 (5th Cir. la. 2014).
sions left open certain questions, one of which the u.s. Court of appeals for the third Circuit rejected the objectors’ concerns and held that
the supreme Court is due to address again in had vacated the district court’s conditional “in the settlement context, variations in state ‘daubert’ and class certification
the case of Tyson Foods v. Bouaphakeo.3 there certification, holding that individual issues antitrust, consumer protection and unjust
are other issues that are still open, including predominated over common issues. It also enrichment laws did not present “the types one hotbed issue is the need for expert
the level of scrutiny to be given to settlement found that there were significant intraclass of insuperable obstacles” that could render analysis at the time of class certification, and
classes and to expert opinions rendered in conflicts of interest, and thus the class repre- class litigation unmanageable.” thus, even the level of scrutiny to be applied to such
connection with class certification.
sentatives were not adequate. the third Cir- where certain class members might not have expert opinions, e.g., the applicability of the

cuit also rejected the district court’s findings cognizable antitrust claims, the Court upheld reliability standard set forth in Daubert v. Mer-
settlement classes
of typicality and superiority. the supreme the certification of the class for settlement rell Dow Pharms.6 under Daubert, the party
Court affirmed, cautioning that the require- purposes. the second Circuit wrestled with offering an expert witness must establish by a
since the 1997 supreme Court decision in ments of rule 23 of the federal rules of Civil the same issue in the case of In re Am. Int’l preponderance of the evidence the qualifica-
Amchem Products v. Windsor,4 it has been procedure, which were “designed to protect Group Secs. Litig., 689 f.3d 229 (2d Cir. 2012). tions of the expert and the expert opinion’s
crystal clear that class action settlements absentees by blocking unwarranted or over- In vacating the district court’s denial of cer- compliance with federal rule of evidence 702.
must meet all of the requirements of rule 23 broad class definitions ... demand undiluted, tification of a securities class that could not this issue was not directly addressed in either
except for one—manageability. In Amchem, even heightened, attention.”5 the court held satisfy the fraud on the market presumption, Wal-Mart or Comcast. (Indeed, the supreme

the court was faced with the proposed set-
that the only difference between settlement the Circuit Court held that “a settlement class Court found that Comcast had “forfeited any
classes and litigation classes is the need to need not show that the fraud-on-the-market objection to the admission of [the expert’s]
demonstrate manageability when the court is presumption applied to its claims in order model at the certification stage,” despite
MiTchell c. Shapiro is a partner at Carter Ledyard & faced with a litigation class. recent decisions to satisfy the predominance requirement,” the fact that was the question on which the
Milburn in New York and practices in the field of com- in three circuit courts—the second, third of which manageability is one of the criteria. court granted review.7) Justice antonin scalia
plex commercial litigation, including class actions.
and fifth—have confirmed the vitality of the
similarly, the fifth Circuit most recently held
said, in response to the district » Page S10