This panel offered the insights of a federal district court judge, defense counsel and plaintiffs’ counsel regarding Class Action Procedure, focusing on trends regarding the class certification process. 

The panel began with a discussion of Eisen v. Carlisle, 417 U.S. 156 (1974) – a case in which the Supreme Court said that courts were not permitted to inquire into the merits of the case at the class certification stage.  According to some of the panelists, this holding has since been modified greatly by the Circuit Courts, most notably in In Re IPO Litigation, 471 F.3d 24 (2d Cir. 2006).  The court in In Re IPO, held that Eisen did not preclude the court from establishing the Rule 23 requirements where they overlap with the merits of the case (although In Re IPO did not establish that the court could address the merit of non-Rule 23 issues).  According to the panelist, the In Re IPO decision has been accepted by a majority of the other Circuit Courts as well.  Not surprisingly, the defense counsel panelists believed that the merits and class certification issues are generally inextricably intertwined, while plaintiffs’ counsel panelists believed that dealing with the merits at the class certification stage was not only unfair to plaintiffs, but leads to the deterioration of the clearly set out litigation stages.

The discussion on In Re IPO set the stage for a discussion of whether courts should entertain evidentiary hearings and potentially Daubert motions with respect to class certification issues.   While defense counsel were generally wholeheartedly in favor of such evidentiary hearings and Daubert Motions, plaintiffs’ counsel were unsurprisingly more skeptical for the need in some situations.  Plaintiffs’ counsel panelists, however, did acknowledge that such hearings and motions may be necessary in some situations (and noted that they generally have confidence in their ability to survive Daubert Motions given the strength of their experts).

Among the most beneficial parts of attending this panel discussion was to hear the perspective from a Federal District Court judge on the class action process and procedure.  Unsurprisingly, he explained that generally a judge will look to the reasons behind allowing class actions generally, and then look at the case or issue at hand and determine whether the underlying purpose for class actions is being served or not.  When the defense counsel panelists suggested their clients general preference to avoid class action proceedings, the judge noted that he believed that more defendants should take the class action situation as an opportunity to deal with cases against them in one fell swoop, rather than dealing with them on an individual basis.