Muehlberger, Mizell Author Class Action Piece in NLJ

SHB Partner James Muehlberger (KC- Class Action, PMDLD) and Associate Nicholas Mizell (KC-National Product Liability) co-authored "Certification Claims Come Under Tighter Scrutiny” in the December 4 issue of The National Law Journal. 

The piece illustrates how deletion of the conditional certification provision from Rule 23(c)(1)(C) of the Federal Rules of Civil Procedure should accelerate the current trend toward critically reviewing and resolving expert opinion disputes at the class certification stage with the application of a full and rigorousDaubert analysis. Jim and Nick use several circuit court decisions to evince their point, including:  Heerwagen v. Clear Channel Communications, 435 F.3d 219, 232-33  (2d Cir. 2006); In re Pharmaceutical Industry Average Wholesale Price Litigation (“In re AWP”), 230 F.R.D. 61 (D. Mass. 2005); Gariety v. Grant Thornton L.L.P., 368 F.3d 356 (4th Cir. 2004);and Eisen v. Carlyle & Jacqueline, 417 U.S. 156 (1974).

“As federal courts increasingly demand strict compliance with the Rule 23 prerequisites, class counsel have responded by shifting issues such as the availability of classwide proof of causation into expert reports, and by using Eisen as a shield to prevent judicial scrutiny of such opinions during class certification proceedings,” the co-authors write.  “Courts have often rejected this interpretation of Eisen. Shorn of its conditional certification provision, Rule 23 now appears to preclude such a ‘certify now, fully evaluate later’ approach to class certification. Courts therefore would do well to critically review and resolve expert-opinion disputes at the class certification stage with the application of a full and rigorous Daubert analysis.”

To read the article in full, please click here.