Commercial Litigation and Arbitration

Applicability of Daubert at Class Certification — Circuit Split — Dicta of the Supreme Court “Should Be Very Persuasive” (Good Quote)

Moore v. Napolitano, 926 F. Supp. 2d 8 (D.D.C. 2013):

Footnote 2.   In Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2553-54, 180 L. Ed. 2d 374 (2011), the Supreme Court suggested that a court should probably determine whether expert testimony is admissible under Rule 702 and Daubert   at the class certification stage. See Wal-Mart, 131 S. Ct. at 2553-54 ("The District Court concluded that Daubert did not apply to expert testimony at the certification stage of class action proceedings. We doubt that is so[.]") (citation omitted). The D.C. Circuit has not spoken about whether district judges must conduct a full Daubert analysis at the class certification stage, and courts in other circuits disagree as to what is required of a district judge deciding a motion for class certification. See In re Rail Freight Fuel Surcharge Antitrust Litig., 286 F.R.D. 88, 92 (D.D.C. 2012) (discussing circuit split). Nevertheless, "dicta of the United States Supreme Court should be very persuasive." Gabbs Exploration Co. v. Udall, 315 F.2d 37, 39, 114 U.S. App. D.C. 291 (D.C. Cir. 1963) (internal quotation marks omitted); see also Bangor Hydro-Electric Co. v. FERC, 78 F.3d 659, 662, 316 U.S. App. D.C. 298 (D.C. Cir. 1996) (stating that "Supreme Court dicta tend[] to have somewhat greater force" than dicta from other courts).

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