The Supreme Court is set to hear oral argument in the case of Comcast v. Behrend this November. The Court’s decision in that case should further refine the Court’s guidance in Wal-Mart Stores, Inc. v. Dukes about the proper standards for federal courts in reviewing motions for class certification. Recently, a team of appellate and class action lawyers from Baker Hostetler’s Washington, D.C., New York, Cleveland, and Denver offices collaborated in preparing an amicus brief on behalf of the Cato Institute, urging the Court to announce clear standards for reviewing the admissibility of a plaintiff’s “common” evidence at the class certification stage. In particular, the brief calls for the Court to adopt clear and generally applicable standards for federal courts to assess the admissibility of expert testimony at the class certification stage. Ilya Shapiro, Senior Fellow in Constitutional Studies and Editor-in-Chief, Cato Supreme Court Review, explains what is at stake for business interests in the case in an article entitled Getting Class Action Rules Right Makes Markets More Efficient. Mr. Shapiro summarizes the issue as follows:
The only way to sufficiently protect the interests of defendants and absent class members, as well as to stay faithful to the basic commonality requirement of Rule 23 — which balances the overall social interests described above — is for the Supreme Court to reverse the Third Circuit and clarify that the Daubert standard applies at the class-certification stage, not just at trial.