Utilizing Recent Case Law
to Develop Effective
Products Liability
Class Action Strategies
Roberta D. Anderson
Partner
K&L Gates LLP
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Introduction
Significant recent developments—including the Supreme Court’s headliner decision in Wal-Mart Stores Inc.
v. Dukes, 131 S. Ct. 2541 (U.S. 2011) and other cases addressing critical issues relating to class
certification—continue to shape the landscape of products liability class action litigation and generally favor
opponents of class certification. The Court’s decision in Wal-Mart is a decisive victory for companies
defending against class actions in general. Id. Another of the Court’s headliner cases this term, the Concepcion
case, also will significantly curtail consumer class actions.
The recent cases addressed in this chapter portend an escalating trend toward enhanced judicial scrutiny
of class action litigation in general, including products liability class actions. Perhaps most significantly,
the recent cases signify a strong and continuing trend toward increased merits scrutiny at the class
certification stage, including increased scrutiny of expert testimony. In a complimentary fashion, recent
cases indicate that courts will require putative class action complaints to meet heightened pleading
requirements. The impact of these decisions will reach beyond the federal courts, as many states have
patterned their respective class action rules after Rule 23 of the Federal Rules of Civil Procedure and
look to the federal case law as guidance in interpreting their respective rules.
Companies and their counsel should carefully consider the recent case law and legislative developments in
developing the most effective litigation strategies.
Key Recent Decisions Impacting Products Liability Class Actions
Merits Scrutiny at the Class Certification Stage and the Role of Daubert
The Wal-Mart Case—Strong Confirmation that the District Court Must Perform a “Rigorous Analysis” to
Ensure that Rule 23 is Satisfied and a Strong Clue that Daubert Applies at the Class Certification Stage
On June 20, 2011, the Supreme Court handed down its much-anticipated decision in Wal-Mart Stores Inc. v.
Dukes, 131 S. Ct. 2541 (U.S. 2011). Although Wal-Mart was not a products liability class action, it is one of
the most important class action decisions that the Court has rendered since its 1982 decision in General
Telephone Company of Southwest v. Falcon, 457 U.S. 147 (1982), and holds broad implications for class actions
generally, including products liability class actions. In a majority opinion that focused on the class plaintiffs’
burden to demonstrate that the Rule 23(a)(2) “commonality” requirement was satisfied (making that
requirement a far more difficult hurdle for plaintiffs than it had been previously), the Court in Wal-Mart
also clarified the scope of a district court’s obligation to address the merits of the plaintiffs’ case at the class
certification stage—and substantiated a general trend in favor of increased merits scrutiny. Wal-Mart, 131 S.
Ct. 2541. It is clear that the Wal-Mart case will resonate far outside of the class action employment realm
and will significantly limit the number of putative class actions that are appropriate for certification. Id.
Wal-Mart, which the Supreme Court described as “one of the most expansive class actions ever,” addressed
a putative Title VII employment class action in which some 1.5 million female employees claimed that WalMart discriminated against women “by denying them equal pay or promotions.” Wal-Mart, 131 S. Ct. at
2547. In support of certification, the plaintiffs offered factual evidence, expert opinions, statistical evidence,
and anecdotal evidence to establish commonality as required under Rule 23(b)(2). See Dukes v. Wal-Mart
Stores Inc., 222 F.R.D. 137, 145 (N.D. Cal. 2004). With regard to the expert testimony, one of the plaintiffs’
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experts presented a “‘social framework analysis’ of Wal-Mart’s ‘culture’ and personnel practices, and
concluded that the company was ‘vulnerable’ to gender discrimination.” Wal-Mart, 131 S. Ct. at 2549
(quoting Dukes v. Wal-Mart Stores Inc., 603 F.3d 571, 601 (9th Cir. 2010)). Wal-Mart unsuccessfully moved to
strike much of the evidence, including the “social framework analysis,” and offered its own statistical and
other proof in an effort to defeat the Rule 23(a) requirements. See id.
The district court granted the plaintiffs’ motion to certify. In finding the evidence presented by plaintiffs to
be sufficient for class certification purposes, the district court applied the Supreme Court’s decision in Eisen
v. Carlisle & Jacquelin, 417 U.S. 156 (1974) in support of a finding that the district court was “not called
upon to make any determination on the merits of Plaintiffs’ allegations of gender discrimination” at the
class certification stage. Dukes, 222 F.R.D. at 142.
The Ninth Circuit substantially affirmed in a deeply fractured en banc opinion, finding that the “[p]laintiffs’
factual evidence, expert opinions, statistical evidence, and anecdotal evidence provide[d] sufficient support
to raise the common question whether Wal-Mart’s female employees nationwide were subjected to a single set of
corporate policies (not merely a number of independent discriminatory acts) that may have worked to
unlawfully discriminate against them in violation of Title VII.” Dukes, 603 F.3d at 612.
The Supreme Court granted certiorari, reversed, and decertified the class. “The crux of th[e] case,” the Court
observed, “is commonality—the rule requiring a plaintiff to show that ‘there are questions of law or fact
common to the class.’” Wal-Mart, 131 S. Ct. at 2550-51 (quoting Rule 23(a)(2)). Addressing this issue, the Court
ruled that the common question “must be of such a nature that it is capable of classwide resolution—which
means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of
the claims in one stroke.” Id. at 2551. The Court further noted that “‘[w]hat matters to class certification ... is not
the raising of common ‘questions’—even in droves—but, rather the capacity of a classwide proceeding to
generate common answers apt to drive the resolution of the litigation.’” Id. (quoting Richard A. Nagareda, Class
Certification in the Age of Aggregate Proof, 84 N.Y.U.L.Rev. 97, 132 (2009)).
In finding that the plaintiffs’ evidence did not satisfy the Rule 23 commonality requirement, the Court
reaffirmed that the plaintiffs have the burden of demonstrating that Rule 23 is satisfied and that the district
court is obliged to engage in a “rigorous analysis” on the merits as necessary to determine that the Rule 23
requirements are satisfied. Id. at 2551 (“[f]requently that ‘rigorous analysis’ will entail some overlap with the
merits of the plaintiff’s underlying claim.”).
As to the proper application of Daubert at the class certification stage, the Supreme Court went out of its
way to indicate, albeit in dicta, the Court’s point of view that a full Daubert inquiry should be made at the
class certification stage:
The parties dispute whether [the expert’s] testimony even met the standards for the
admission of expert testimony under Federal Rule of Civil Procedure 702 and our Daubert
case[.] 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, but even if properly
considered, [the] testimony does nothing to advance respondents’ case.
Id. at 2553-54 (emphasis added, citations omitted).
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Finding “no convincing proof of a companywide discriminatory pay and promotion policy” after an examination
of the record, a 5-4 majority of the Court concluded that the plaintiffs could not establish “commonality” and
agreed with the summation provided by the Ninth Circuit’s dissenting opinion:
[T]he members of the class … “held a multitude of different jobs, at different levels of WalMart’s hierarchy, for variable lengths of time, in 3,400 stores, sprinkled across fifty states,
with a kaleidoscope of supervisors (male and female), subject to a variety of regional policies
that all differed .... Some thrived while others did poorly. They have little in common but
their sex and this lawsuit.”
Id. at 2556, 57 (quoting Dukes, 603 F.3d at 652 (Kozinski, C.J., dissenting)).
It is clear that the Wal-Mart case will resonate far outside of the class action employment realm and will
significantly limit the number of putative class actions that are appropriate for certification. In addition to
reinforcing the district court’s obligation to conduct a “rigorous analysis” to determine that the Rule 23
requirements are satisfied, the Wal-Mart case has rendered the Rule 23(a)(2) commonality requirement a far
more difficult hurdle for plaintiffs to overcome. In addition, although the Court did not expressly decide
the Daubert issue, the Court’s guidance is abundantly clear. As discussed below, moreover, a majority of the
federal courts of appeal to consider the issue already have held that Daubert applies with full force at the
class certification stage.
American Honda v. Allen—Daubert Applies at the Class Certification Stage
Although the Supreme Court in Wal-Mart declined to expressly rule upon whether a full Daubert analysis is
required at the class certification stage, the Seventh Circuit recently expressly and decisively answered this
question in the affirmative in American Honda Motor Company v. Allen, 600 F.3d 813 (7th Cir. 2010).
American Honda was a putative products liability class action, which concerned the plaintiffs’ claim that
Honda’s Gold Wing GL1800 motorcycle had “a design defect that prevent[ed] the adequate dampening of
‘wobble,’ that is, side-to-side oscillation of the front steering assembly about the steering axis.” Id. at 814. The
plaintiffs moved for class certification and, in support of their motion, relied upon a report of a motorcycle
engineering expert “to demonstrate the predominance of common issues” as required by Rule 23(b)(3).
Although the district court had “definite reservations about the reliability of” the expert’s testimony, “the
court decline[d] to exclude the report in its entirety at th[e] early stage of the proceedings.” Id. at 815
(quoting Allen v. Am. Honda Motor Co., 264 F.R.D. 412, 428, 437 (N.D. Ill. 2009)). Honda appealed.
The Seventh Circuit reversed and confirmed that the district court must “perform a full Daubert analysis
before certifying the class” in order to determine the admissibility of expert testimony if such testimony is
“critical to class certification.” Id. at 815-16 (quoting Carroll v. Otis Elevator Co., 896 F.2d 210, 212 (7th Cir.
1990)).
Sher v. Raytheon—Daubert Applies at the Class Certification Stage
The Eleventh Circuit recently applied the American Honda holding in Sher v. Raytheon Co., 419 Fed. Appx. 887
(11th Cir. 2011), a putative class action alleging that Raytheon was responsible for the release of toxic waste
into the groundwater of the surrounding neighborhoods. See id. at 888. To demonstrate the predominance of
common issues under Rule 23(b)(3), the plaintiffs’ groundwater expert identified the impacted area as a toxic
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underground plume stretching approximately one mile long and 1.7 miles wide from the Raytheon facility. See
id. at 888-89. In rebuttal, Raytheon produced its own groundwater expert challenging, inter alia, the plaintiffs’
expert’s methodology for defining the impacted area, or putative class, as “inconsistent with applicable
professional standards.” Id. at 889.
The district court certified the class despite marked differences between the expert testimony presented by
the parties, finding that it did not have to “engage in a Daubert style critique” of the expert’s qualifications
or “declare a proverbial winner” in the battle of the experts. Id. at 889.
The Eleventh Circuit reversed, agreeing with the Seventh Circuit in American Honda that a full Daubert
analysis should be undertaken to the extent the proffered expert testimony is relevant to establishing that
the Rule 23 requirements are satisfied: “We hold that the district court erred as [sic] matter of law by not
sufficiently evaluating and weighing conflicting expert testimony presented by the parties at the class
certification stage.” Id. at 888; but see In re Zurn Pex Plumbing Products Liability Litigation, 644 F.3d 604, 2011
WL 2623342 (8th Cir. 2011).
Heightened Pleading Requirements
In addition—and in a complimentary fashion—to the trend toward increasing merits scrutiny at the class
certification stage, recent cases indicate that courts will require putative class action complaints to meet
the heightened pleading standard as set forth in the Supreme Court’s decisions in Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 129 S.Ct. 1937 (U.S. 2009). See, e.g., Nicholas v. CMRE
Financial Services, Inc., 2009 WL 1652275, at *4 (D.N.J. June 11, 2009).
“No Injury” Products Liability Class Actions
Courts have been extremely reluctant to certify putative products liability class actions alleging personal
injury or property damage, however, because individual questions of law and fact in such cases typically
predominate over questions common to the proposed class and, therefore, the requirements of Rule
23(b)(3) are not satisfied. In response, there has been a striking proliferation of so-called “no injury” class
actions, which typically allege “economic injury” resulting from the purchase of the defendant’s product,
but do not allege physical injury or damage resulting from the use of the purchased product. Recently filed
“no injury” cases reveal an increasing trend—fueled by increased FDA and other regulatory scrutiny—of
putative class actions targeting food and beverage products. See, e.g., Scarpelli et al. v. ConAgra Foods Inc., No.
2:11-cv-04038, Compl. (filed July 14, 2011) at ¶ 1 (D.N.J.) (“This is a class action against ConAgra Food,
Inc. … for passing off genetically modified oils as ‘100% natural.’… In fact, the Mislabeled Wesson Oils
are not ‘100% Natural.’”); Solomon v. Ramona’s Mexican Food Products Inc. et al., No. BC463914, Compl. (filed
June 17, 2011) at ¶ 21 (Ca. Super. Ct. Los Angeles Cty.) (“Plaintiff is informed and believes each
BURRITO always actually contained 340 calories and 580 mg sodium despite Defendant’s advertising and
mislabeling that it contained half of those amounts.”); Richardson v. Phusion Projects LLC et al., No. 3:11-cv00456, Compl. (filed Mar. 4, 2011) at ¶ 31 (S.D. Cal.) (“Nothing in the advertising, labeling, packaging,
marketing, promotion and selling of Four Loko gave [plaintiff] any warning of the particular dangers of
drinking a caffeinated beverage with high alcoholic content.”). Other trends involve cases targeting health
and beauty products and small electronics products in addition to more conventional “no injury” targets
such as automobiles and their component parts.
A Second Bite at The Certification Apple?
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Class-Action Fairness Act Jurisdiction
In the event a class action is dismissed in federal court—based on failure to meet heightened merits scrutiny,
pleading requirements, lack of standing, or otherwise—recent decisions have confirmed that a district court’s
jurisdiction under the Class-Action Fairness Act of 2005 (“CAFA”) does not depend upon class certification
and, therefore, plaintiffs cannot simply return to state court to enjoy another bite at the class certification
apple. See, e.g., United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & Service Workers Intern. Union,
AFL-CIO, CLC v. Shell Oil Co., 602 F.3d 1087, 1091, 1092 (9th Cir. 2010) (“Even though CAFA indisputably
creates original federal jurisdiction prior to class certification, the statute does not say whether the postremoval denial of class certification divests the federal courts of jurisdiction[.]… [W]e hold that continued
jurisdiction under § 1332(d) ‘does not depend on certification.’ If a defendant properly removed a putative
class action at the get-go, a district court’s subsequent denial of Rule 23 class certification does not divest the
court of jurisdiction, and it should not remand the case to state court.”) (quoting Cunningham Charter Corp. v.
Learjet, Inc., 592 F.3d 805, 806 (7th Cir. 2010)).
The Smith Case—Finding the Anti-Injunction Act “Relitigation Exception” Inapplicable
In a “win” for creative plaintiffs’ attorneys seeking a second bite at the class action apple, the Supreme Court
on June 16, 2011 held that the “relitigation exception” to the Anti-Injunction Act did not bar a similar
putative class action from proceeding in West Virginia state court in Smith v. Bayer Corp., 131 S. Ct. 2368 (U.S.
2011). Smith involved two separate class action certification motions in two separate federal and state court
actions (the “McCollins” action and the “Smith” action, respectively), each of which sought to certify a class
of persons who used an allegedly hazardous prescription drug called Baycol. The Southern District of West
Virginia denied certification of the McCollins action under Rule 23 and also enjoined the state court from
considering class certification based on the “relitigation exception” to the Anti-Injunction Act, which allows a
federal court to enjoin a state court action where an injunction is “necessary … to protect or effectuate its
judgments.” Id. at 2375 (quoting 28 U.S.C. § 2283). The Eighth Circuit affirmed. See In re Baycol Prods. Litig.,
593 F.3d 716 (2010).
The Supreme Court granted certiorari and reversed, holding that “the federal court exceeded its authority
under the ‘relitigation exception’ to the Anti–Injunction Act.” Smith, 131 S.Ct. at 2373. The Court
confirmed that, in order for the relitigation exception to apply, (1) the issue decided by the federal court
must be “the same” as the issue presented to the state court and (2) the state court plaintiff, with few
exceptions, “must have been a party to the federal suit.” Id. at 2376. Addressing the first requirement, the
Court found that the issue was not the same because, although the West Virginia Rule 23 is virtually
identical to Rule 23 of the Federal Rules of Civil Procedure, the “West Virginia Supreme Court has
disapproved the approach to the Rule 23(b)(3) predominance requirement that the Federal District Court
embraced,” and, therefore, the courts “apply different law” and “decide distinct questions.” Id. at 2378, 79.
Addressing the second requirement, the court noted that, although “an unnamed member of a certified class
may be ‘considered a ‘party’ for the [particular] purpos[e] of appealing’ an adverse judgment,” the federal
action was not certified and, therefore, “the precondition for binding [the state plaintiff] was not met.” Id.
at 2380 (quoting Devlin v. Scardelletti, 536 U.S. 1, 7 (2002)).
Smith resolved a split among the circuits regarding the proper application of the “relitigation exception” and
clarified that the parties and legal issues must be the same—similar is insufficient. The decision is likely to
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encourage multiple bites at the class certification apple, although it does not necessarily bar an injunction
against the same parties or their counsel.
Class Arbitration after Concepcion?
On April 27, 2011, the Supreme Court substantially curtailed a consumer’s right to bring a class action
lawsuit in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (U.S. 2011). Concepcion arose out of an
agreement for the sale and servicing of cellular telephones. The plaintiffs “purchased AT & T service,
which was advertised as including the provision of free phones; they were not charged for the phones, but
they were charged $30.22 in sales tax based on the phones’ retail value.” Id. at 1744. The plaintiffs filed a
complaint against AT & T in the Southern District of California, which was later consolidated with a
putative class action alleging, among other things, that AT & T had engaged in false advertising and fraud
by charging sales tax on phones it advertised as free. See id. AT & T moved to compel arbitration under the
terms of its contract, which provided for arbitration of all disputes between the parties and also required
that claims be brought in the parties’ “individual capacity, and not as a plaintiff or class member in any
purported class or representative proceeding.” Id. The district court denied AT & T’s motion, finding that
the arbitration provision was unconscionable. See id. at 1745. The Ninth Circuit affirmed on the basis of
Discover Bank v. Superior Court, 113 P.3d 1100 (Cal. 2005), which held that class waivers are inherently
unconscionable “when the waiver is found in a consumer contract of adhesion in a setting in which
disputes between the contracting parties predictably involve small amounts of damages, and when it is
alleged that the party with the superior bargaining power has carried out a scheme to deliberately cheat large
numbers of consumers out of individually small sums of money.” Id. at 1110.
The Supreme Court granted certiorari, reversed and remanded. The Court phrased the question as one of preemption, specifically “whether the FAA prohibits States from conditioning the enforceability of certain
arbitration agreements on the availability of classwide arbitration procedures.” Concepcion, 131 S. Ct. at 1744. In a
fact-driven opinion, the Court focused on Section 2 of the FAA, which “makes agreements to arbitrate ‘valid,
irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any
contract.’” Id. (quoting 9 U.S.C. § 2). In considering the Section 2 saving clause, the Court focused on
unconscionability because the court in Discover Bank had held that class waivers were unconscionable. The Court
concluded that the “Discover Bank rule” was pre-empted “[b]ecause it ‘stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of Congress[.]’” Id. at 1753 (quoting Hines v.
Davidowitz, 312 U.S. 52, 67 (1941)). In so holding, the Court went out of its way to note that the contractual
provision at issue was extremely favorable to the customer. See id. at 1745.
The Court’s decision in Concepcion extends its prior term decision in Stolt–Nielsen S.A. v. AnimalFeeds
International Corp., 130 S. Ct. 1758 (U.S. 2010), which held that “a party may not be compelled … to submit
to class arbitration unless there is a contractual basis for concluding that the party agreed to do so.” Id. at
1775.
Preparing for Class Action Products Liability Cases
The recent trends, which will change the way parties prepare for and litigate (or arbitrate) putative class actions,
underscore an already well-known fact and overarching strategy: defendants facing a putative products liability
class action must develop an effective defense as early in the case as possible.
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Although it is important to remember that these litigation strategies need to be tailored to the specific case at
hand, in crafting an effective and integrated defense strategy, consideration to the following practical,
procedural, and substantive points should be given early attention:
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Counsel with significant class-action experience should be retained and a strong and effective
defense team constituted as soon as possible. Counsel should be used to working with the media
and should understand any regulatory and investigative matters facing the company and the
interplay between such matters and any pending and threatened litigation. A legal defense team
may include national coordinating counsel, special trial counsel, local counsel, and insurance
coverage counsel.
Counsel must create a strong, cohesive, and persuasive theme as early as possible, as this will
inform discovery and motion practice as well as trial if necessary. Of course, the theme will evolve
as the facts and testimony are developed.
Experts—both consulting and testifying—should be identified early in litigation, and testifying
experts may be used to defeat class certification.
Counsel should consider the potential for change of venue, via removal, CAFA, transferal or
pursuant to the doctrine of forum non conveniens.
Counsel should weigh the pros and cons of multi-district litigation (MDL).
Although CAFA has made it far easier (although not effortless) for defendants to remove cases to
federal court, counsel should not reflexively assume that removal to federal court is preferable;
rather, consideration should be given to whether removal is preferable given the particular facts
and circumstances of the case, including whether an MDL may be preferable under the
circumstances.
Counsel should carefully consider all the ways in which it can educate the court regarding the flaws in
the plaintiffs’ case, including through early motion practice. Counsel should consider, in addition to a
motion to dismiss, a pre-emptive motion to deny class certification and a motion to strike class
claims.
Motions to dismiss or for a more definite statement should be considered at the very outset of
litigation to take advantage of heightened pleading requirements.
Affirmative defenses may be available, including statutes of limitations, contributory negligence,
and numerous others.
Discovery generally should aim to demonstrate that the named plaintiffs’ claims differ inter se and/or
with respect to the class claims.
To the extent discovery is bifurcated, defense counsel should be sure that the scope of discovery is
sufficiently broad to support a successful opposition to class certification.
Counsel should consider whether some or all of the claims might be pre-empted by federal law.
Successful opposition of class certification is crucial.
Counsel should consider whether summary judgment motions might be used to dispose of certain
claims and narrow the case. Summary judgment motions filed simultaneously with a motion to
oppose class certification can strengthen the opposition effort.
If a class has been certified, counsel should consider a motion to decertify and if necessary an
interlocutory appeal under Rule 23(f) appeal.
Counsel should consider the potential for settlement.
An insurance coverage analysis should be undertaken with the assistance of knowledgeable
insurance coverage counsel, and insurers should be promptly placed on notice of the claims,
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Choosing Experts in Class Action Products Liability Cases
Experts are critical to an overall litigation strategy and can be the difference between a win or a loss. As
illustrated by the recent cases, moreover, the use of expert testimony is increasingly common at the class
certification stage and, in many cases, the parties present “dueling” expert reports at the class certification
stage. It therefore is imperative that the parties give significant consideration to the preparation of expert
testimony prior to class certification. Such testimony may prove critical to the plaintiffs’ ability to
demonstrate that their claim satisfies each of the Rule 23 requirements and critical to the defendant’s ability
to avoid class certification. Successful challenge to an opponent’s expert can end the case before it is
certified. Contrariwise, if an expert survives challenge, the stage for additional suits may be set.
It is important to remember that the admissibility of expert evidence will depend in part upon the
jurisdiction and may extend beyond Daubert. Although all federal courts are constrained to follow Daubert,
some states, including New York and Pennsylvania (and a number of other states), continue to follow the
standard articulated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
In preparing the selected expert witness for litigation, including a Daubert or Frye challenge, the following
should be considered:
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The expert should understand the specific standard for admissibility.
The expert should be supplied with the full evidentiary record and should understand that s/he is free to
request additional information.
Counsel must make every effort to understand the substance of the expert testimony.
The amendments to Rule 26, which became effective December 1, 2010, extend work-product
immunity to “drafts” of expert reports, Rule 26(a)(4)(B), and to “communications between the
party’s attorney and any witness … except to the extent that the communications: (i) relate to
compensation for the expert’s study or testimony; (ii) identify facts or data that the party’s attorney
provided and that the expert considered in forming the opinions to be expressed; or (iii) identify
assumptions that the party’s attorney provided and that the expert relied on in forming the
opinions to be expressed.” FED. R. CIV. P. Rule 26(a)(4)(C).
The expert should be advised regarding the rules of evidence and how to present testimony and answer
questions during a deposition.
Conclusion
The recent developments—including the headline Wal-Mart and Concepcion cases— portend an escalating
trend toward enhanced judicial scrutiny for class actions in general, including products liability class actions.
Perhaps most significantly, the recent cases signify a strong and continuing trend toward increased merits
scrutiny at the class certification stage, including increased scrutiny of expert testimony. Heightened
pleading requirements compliment this trend. Companies and their counsel should carefully consider the
recent case law and legislative developments in developing the most effective litigation strategies.
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