Commercial Litigation and Arbitration

Daubert & Class Certification

The Ninth Circuit’s split opinion affirming certification in the class action against Wal-Mart alleging sex discrimination, Dukes v. Wal-Mart, Inc., 2007 U.S. App. LEXIS 2601 (9th Cir. Feb. 6 2007), contains a significant holding regarding the evidentiary standard governing experts who testify at the class certification stage. ‛[C]ourts need not apply the full Daubert ‘gatekeeper’ standard at the class certification stage. Rather, ‘a lower Daubert standard should be employed at this [class certification] stage of the proceedings.’“ Id. at *18. Query how consistent this is with, for example, the approach of the Second Circuit in In re Initial Pub. Offering Sec. Litig., 471 F.3d 24, 36 (2d Cir. 2006), which rejected an earlier Second Circuit decision’s suggestion that, on class certification, the trial court ‛was obliged[only] to determine only whether [the plaintiffs] had shown, based on [expert] methodology that was not fatally flawed, that the requirements of Rule 23 were met.‛ That earlier Second Circuit decision, In re Visa Check/ Mastermoney Antitrust Litig., 280 F.3d 124 (2d Cir. 2001), was a source relied on by the Wal-Mart majority.

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