Defeating Class Certification How Courts Are Handling

Complex Commercial Cases

Dual RepresentationUnderstanding The Inherent Risks

Vol. 2 No. 4 October 2009

S o l u t i o n S F o r Y o u

Christy D. JonesCo-Chair — Litigation

Charles F. JohnsonCo-Chair — Business and Corporate Healthcare

D Dear Clients:

Risk management, from the perspective of avoiding risk or minimizing risk, almost certainly has long-reaching implications. In this issue of Pro Te: Solutio, we offer four articles to help you understand, anticipate, and manage risk.

What are the risks inherent in one law firm representing a company and its employees during an internal investigation and parallel civil litigation? They can be great without the so-called “Upjohn warning,” also known as the “Corporate Miranda.” In this issue, find out what the ABA is doing to provide a best practices guideline on Upjohn warnings and what you should know in the meantime to minimize risk.

In an ideal world, judicial decisions would be based on perfect information. In the real world, attorneys for pharmaceutical and medical device companies must find the best ways to present the complex technology or science behind their products. “Science Day” or court tutorials help educate the court on these issues, thus avoiding the risks an incomplete base of information can pose. Learn more about how information should be presented in Using “Science Day” To Your Advantage.

Which states recognize claims for medical monitoring when plaintiffs allege a risk of future injury and which do not? The answers to this question are all over the map, figuratively and literally. In Case v. Law, we provide a comprehensive reference regarding state law.

A new wave of complaints involving purely commercial disputes is becoming prevalent — and just as prevalent are their “class action” hearings. Yet, if a class is certified, the risk of tremendous monetary exposure may outweigh any potential benefit of taking a case to trial. Defeating Class Certification in Complex Commercial Litigation discusses the development of case law and how greater scrutiny at the class certification stage presents a higher hurdle for plaintiffs seeking to certify a class.

Pro Te: Solutio is a resource of practical insights and information exclusively available to Butler Snow Pharmaceutical, Medical Device, and Healthcare Industry clients. This publication is intended to help you avoid risk and litigation. It’s one of many ways we can help make a difference for those dedicated to making a difference in the lives of others.

8

Pro Te: Solutio 1

table of contents

It’s human nature to share problems. But how often is someone

willing to share solutions? Butler Snow wants to do just that ––

provide scenarios and the solutions that turned a client’s anxiety

into relief and even triumph. That’s why we created this magazine,

Pro Te: Solutio, which explores how real-life legal problems have

been successfully solved.

That’s also why we at Butler Snow redesigned and expanded our

unique health-oriented industry group, now comprised of two

major sections that handle business and litigation. The Pharma-

ceutical, Medical Device, and Healthcare Industry Group has more

than 50 multi-disciplinary attorneys who provide creative solu-

tions for the complex issues of the healthcare industry. This group

includes product liability and commercial litigators; corporate,

commercial, and transaction attorneys; labor and employment

attorneys; intellectual property attorneys; and those experienced

in government investigations.

Pro Te: Solutio is a quarterly magazine available only to the

clients of Butler Snow. If you have questions or comments about

its articles, you’re invited to contact group co-chairs Christy Jones

and Charles Johnson, as well as any of the attorneys listed on the

last page of this publication.

Vol. 2 No. 4 October 2009

Understanding the Inherent Risks of Dual Representation2

Sharing Solutions

Using “Science Day” to Your Advantage

Defeating Class Certification in Complex Commercial Litigation14

departments

13 Case Law

2 Pro Te: Solutio

Pro Te: Solutio 3

Understanding the inherent risks of

dUal representationin internal investigations and Civil litigation

The recent U.S. v. Nicholas1 decision high-lights the “treacherous path” tread by outside corporate counsel conducting an internal investigation while simultaneously repre-senting the company and key officers in parallel civil litigation. In-house counsel should understand the risks of dual repre-sentations and how their companies may be negatively impacted if these issues are not properly addressed. The Nicholas case arises from the criminal prosecution of Broad-com Corporation’s former CFO, William J. Ruehle, for his alleged role in backdating stock options. A California District Court Judge, Cormac Carney, ordered the sup-

pression of evidence obtained from Ruehle by Broadcom’s outside counsel, Irell & Manella LLP (“Irell”), during its internal investigation of Broadcom’s stock option granting practices. Judge Carney found that Irell did not properly advise Ruehle that, in the context of the interviews in question, Irell represented Broadcom — and not Ruehle individually — and its dis-closure of the statement to the government without Ruehle’s consent was improper.2 The Ninth Circuit Court of Appeals re-versed, finding that Ruehle failed to meet his burden of establishing a privilege with respect to information he provided with

the full understanding that the informa-tion would be disclosed to third parties.3

Background:In mid-May 2006, Broadcom retained Irell

in connection with the company’s internal investigation of its stock option granting practices.4 Within a week, civil lawsuits were filed and/or amended that alleged wrong-doing in relation to those same practices.5 The suits named both Broadcom and Ruehle, personally, as defendants. On May 30, 2006, Broadcom’s in-house general counsel sent an e-mail to Ruehle and others advising them of the civil suits and encouraging them to

TThe Board directs the Company’s General Counsel to investigate possible corporate wrongdoing. The General Counsel hires outside counsel to help. Outside counsel interviews witnesses to assess the allegations and provide legal advice to the company. Soon after, the Department of Justice begins its investigation. Class and derivative actions follow, some of which name key corporate executives as defendants. Under pressure to reduce expenses as a result of the economy, the General Counsel retains the same outside counsel to handle the civil litigation because it is already familiar with the issues. Ultimately, the Department of Justice is willing to cut a deal but demands that outside counsel disclose witness statements, some of which may implicate key executives. Now what?

4 Pro Te: Solutio

In the corporate context, Upjohn warnings, also known as

“Corporate Miranda,” inform constituent members of an organization that the attorney

represents the organization and not the constituent member.

contact either him or Irell attorneys if they had any concerns.6 The same day, Ruehle received an e-mail from an Irell partner, updating Ruehle on the scheduling of em-ployee interviews as part of the internal investigation. The same e-mail asked Ruehle to set up a time when the Irell attorneys could meet with him.7 That meeting occurred June 1, and Ruehle discussed with the attor-neys Broadcom’s stock option practices and his role as CFO. According to the Ninth Circuit’s decision, “[a]t no point did the topic of the civil securities lawsuits arise as it might relate to Ruehle personally. Nor did Ruehle ever indicate to the lawyers that he was seek-ing legal advice in his individual capacity.”8

Before the month was gone, Irell advised Ruehle to get his own attorney with respect both to the investigations and the civil liti-gation. Ruehle continued to be involved in the company’s internal review. Irell eventu-ally fully disclosed the information gleaned from the equity review to Ernst & Young, Broadcom’s outside auditors, including in-formation obtained from Ruehle. Ruehle participated in some of the meetings with the outside auditors, and Irell kept him abreast of those meetings. The equity re-view revealed accounting irregularities, and Broadcom restated its earnings to report $2.2 billion in previously undisclosed com-pensation expenses. The government began formal investigations of several Broadcom executives and, with Broadcom’s permis-sion, interviewed Irell attorneys about the information they obtained from Ruehle. When Ruehle learned that the government might use the information to bring criminal charges against him, he claimed that the statements to Irell attorneys were protected by attorney-client privilege. He also claimed that his written consent was necessary be-fore Irell could disclose anything he said to

them, and he had not given that consent. Ruehle was indicted, and the government

requested a hearing to resolve whether Ruehle’s statements to the attorneys were privileged. The district court found that Ruehle intended his statements to be confi-dential and had no reason to suspect that his conversations with the lawyers would be disclosed to third parties. Irell’s disclosure required Ruehle’s consent because at the time Irell interviewed him — on Broadcom’s behalf — the firm also represented Ruehle individually in two civil lawsuits.9 The court concluded that the statements Irell obtained from Ruehle during the interview were priv-ileged attorney-client communications.

The district court reprimanded Irell for failing to give the CFO a proper Upjohn warning. It held that Irell failed to advise Ruehle that (1) Irell was only representing Broadcom at the interview and not Ruehle individually; (2) Ruehle could, and given the situation probably should, consult his own attorney; and (3) any privilege be-longed to Broadcom, and Broadcom could choose to present the information Ruehle provided during the interview to third par-ties, including the government, in a crimi-nal investigation. The court found that Irell’s “ethical misconduct has compromised the rights of Mr. Ruehle, the integrity of the legal profession, and the fair administration of justice.”10 The court referred the entire Irell law firm to the state bar for discipline.

In its reversal, the Ninth Circuit left open the issue of whether Irell had acted improp-erly. That court noted that the issue of any misconduct was not part of the appeal and treated the issue of the Upjohn warning as irrelevant to its decision.11 They described as “troubling” the attorneys’ actions in counsel-ing Broadcom to disclose the information without obtaining Ruehle’s written consent,

but rejected Ruehle’s argument that any breach of professional duties provided an in-dependent basis to suppress the statements.12

Instead, the Ninth Circuit focused on whether Ruehle’s statements to the Irell at-torneys were made in confidence and found they were not.13 Ruehle “frankly admitted” that he understood the information uncov-ered by Irell would be disclosed to Ernst & Young — “good, bad, or ugly.”14 Ruehle acknowledged that the information he con-veyed to the Irell attorneys was largely fac-tual and that this was the type information that would be disclosed to third parties.15 The court specifically noted that “as the head of finance” Ruehle could not credibly claim ignorance of Broadcom’s disclosure obligations “or the need to truthfully report corporate information to the SEC.”16 The court clearly was influenced not only by Ruehle’s sophistication but also by the level of his involvement in the internal investigation. As a member of senior management, Ruehle knew that Broadcom intended to fully coop-erate with the outside auditors and the SEC. He met with the audit committee and “re-mained fully apprised […] of the status of Irell’s investigation and the flow of informa-tion.”17 Thus, the “overwhelming evidence” demonstrated that Ruehle did not speak with the attorneys in confidence but rather “for the purpose of outside disclosure.”18

The Upjohn Warning — A Brief Refresher:

The seminal case of Upjohn v. United States, 449 U.S. 383 (1981) established the so-called “Upjohn warning,” the corporate equivalent of the well-known Miranda warnings for criminal actions. In Upjohn, the United States Supreme Court held that communica-tions between corporate counsel and lower-level corporate employees are privileged.19

Pro Te: Solutio 5

Oral Upjohn warnings have been the standard practice for internal investigations for

many years. The Nicholas decision, however, appears to require (or at least strongly encourage)

counsel to obtain a written acknowledgment that an Upjohn warning was given.

In the corporate context, Upjohn warnings, also known as “Corporate Miranda,” inform constituent members of an organization that the attorney represents the organization and not the constituent member.20 Thus, the pur-pose of the warning is to prevent any misun-derstanding — a company’s attorney is not an employee’s personal attorney.

A proper Upjohn warning informs a cor-porate employee that the company controls the privilege and the confidentiality of the communication.21 It also apprises a corpo-rate employee that no attorney-client rela-tionship exists and that any communication between the attorney and the individual may be disclosed to third parties at the com-pany’s discretion.22

The issues of who holds the privilege and who may waive the privilege become par-ticularly important in the context of a governmental investigation. For example, in-house counsel may conduct its own in-ternal investigation of alleged corporate wrongdoings or retain outside counsel for the job. Either way, the attorneys involved will likely interview key employees with knowledge of the allegations. Unless proper Upjohn warnings are given, the company may not have the opportunity to mitigate criminal or civil exposure by producing

employee statements collected during the investigation. Indeed, this is exactly what happened to Broadcom in the Nicholas case. The court commented, “I also feel sorry for Broadcom because Broadcom […] will not get the full benefit of cooperation with the government because the government can-not get the bang for their buck for the coop-eration.”23 Thus, the importance of a proper Upjohn warning is paramount.

The economy has no doubt increased the need for all companies to minimize expenses. This change in budgeting has led to many in-house counsels’ conducting their own investi-gations. In doing so, they need to be mindful of the same issues that face outside counsel and must clarify that they represent the com-pany and not individual employees.24

When interviewing key company wit-nesses, in-house counsel must be aware of Rule 1.13(f ) of the ABA’s Model Rules of Professional Conduct which requires:

In dealing with an organization’s directors, officers, employees, members, shareholders, or other constituents, a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organiza-

tion’s interests are adverse to those of the constituents with whom the lawyer is dealing.25

Unfortunately, some employees will be surprised at this news. After all, many em-ployees believe that since they are part of the company and because the in-house counsel represents the company, then they too are represented. Such an assumption will quickly change after receiving a cold “Miranda style” warning. Thus, in-house counsel should expect some employees will be skeptical or refuse to cooperate, adding difficulty to any investigation.

Does Nicholas Create a Higher Standard for Upjohn Warnings?

Oral Upjohn warnings have been the standard practice for internal investigations for many years. The Nicholas decision, however, appears to require (or at least strongly encourage) counsel to obtain a written acknowledgment that an Upjohn warning was given.26 Indeed, the Nicholas court had “serious doubts whether any Upjohn warning was given” because “no warning is referenced in [outside counsel’s] notes from the meeting, and no written record of the warning even exists.”27

6 Pro Te: Solutio

The issues of who holds the privilege and who may waive the privilege become

particularly important in the context of a governmental investigation.

Pro Te: Solutio 7

Whether Nicholas adds anything new is a subject for fair debate, and that issue was not clarified by the Ninth Circuit’s decision. The district court’s opinion nevertheless underscores the importance of securing a written acknowledgement and the conse-quences that may arise if separate counsel issues are not appropriately and timely ad-dressed at the outset.

What’s Next?Most likely spurred in part by the Nicholas

decision, the ABA formed a task force to provide a “best practices” guideline for Upjohn warnings. The report is expected by fall of 2009. For now, below is a sample warning provided by the ABA:

I am a lawyer from Corporation A. I represent only Corporation A, and I do not represent you. I am conducting this interview to gath-er facts in order to provide legal advice for Corporation A. I am conducting this interview as part of an investigation to determine the facts and circumstances of X in order to advise Corporation A how best to proceed.

Your communications with me are protected by the attorney-client privilege. In order for the commu-nication to be subject to the privi-lege, it must be kept in confidence. In other words, you may not dis-close the substance of this inter-view to any third party, including other employees or anyone outside of the company.

But the attorney-client privilege belongs solely to Corporation A, not you. That means that Corpo-ration A alone may elect to waive the attorney-client privilege and reveal our discussion to third par-ties. Corporation A alone may de-cide to waive the privilege and disclose this discussion to such third parties as federal or state agencies, at its sole discretion, and without notifying you.

Do you have any questions? Are you willing to proceed?28

Solutions for In-House Counsel? When in-house counsel faces potential,

threatened, or pending civil litigation (in-cluding an internal, regulatory, or crimi-nal investigation), the following points should be considered before interviewing company employees. The facts and circum-stances of each case will dictate what constitutes an appropriate Upjohn warn-ing, but Nicholas counsels that caution is the order of the day.

• Quickly identify those employees whose interests may diverge from the company;

• Quickly address internally and with in-surers, if any, the potential need for separate counsel for individual employees;

• Obtain written consent from employ-ees acknowledging that they have received an Upjohn warning and understand that the substance of the interview may be dis-closed to third parties at the discretion of the company;

• Ensure at least two attorneys are present during all witness interviews;

• Record all witness interviews of key cor-porate witnesses;

• Draft detailed memos regarding who participated in interviews and how Upjohn warnings were given to the employees;

• Provide a refresher course for in-house counsel about the importance of Upjohn warnings, including the upcoming ABA best practices guides;

• Review the company’s employment contracts to ensure that employees receive notice that the in-house counsel represents the company or its board of directors, not the employees; also review what options are available for the company if employees fail to cooperate; and

• Insist that outside counsel, if any, provide an engagement letter that clearly outlines the nature and scope of the representation, including exactly who is represented by the firm.

Conclusion:The Nicholas decision highlights dual

representation issues common to most investigations. With unambiguous Upjohn warnings — which should always be in writing — in-house and outside counsel alike will limit disputes over the extent and

nature of the attorney-client relationship and preserve opportunities for the com-pany. One can never be too clear about who represents whom.

1 United States v. Nicholas, 2009 WL 890633 (C.D. Cal. April 1, 2009), rev’d by United States v. Ruehle, 2009 WL 3152971 (9th Cir. Sept. 30, 2009).2 Nicholas, 2009 WL 890633 at *11.3 United States v. Ruehle, 2009 WL 3152971, *10 (9th Cir. Sept. 30, 2009).4 Id. at *1. 5 Id. at *2.6 Id. 7 Id. 8 Id. 9 Nicholas, 2009 WL 890633 at *7. 10 Id. 11 Ruehle, 2009 WL 3152971 at *10. 12 Id. 13 Id. at *6. The Ninth Circuit accepted the District Court’s finding that Ruehle reasonably believed that Irell represented him individually with respect to the civil litigation and assumed that Irell had attorney-client relationships with both Broadcom and Ruehle individually. Id. at *4.14 Id. at *6-7. 15 Id. at *8. 16 Id. at *7. 17 Id. 18 Id. at *10. 19 Upjohn, 449 U.S. at 394-95.20 United States v. Nicholas, 2009 WL 890633 (C.D. Cal. April 1, 2009) at *6 citing Decl. of Prof. Adam Winkler. 21 Id. 22 Id.23 Feb. 27, 2009, Tr. at 25. 24 ABA’s Model Rules of Professional Conduct 1.13(a) (“A lawyer employed or retained by an organization repre-sents the organization acting through its duly authorized constituents”).25 Neither Nicholas nor Upjohn addresses Rule 1.13(f ), but it is an important ethical consideration for all attorneys.26 Id. at *6.27 Id. 28 The ABA’s sample warning comes from the Task Force’s March 2, 2009, draft report.

Written by Chad hutChinson

8 Pro Te: Solutio

USING

TO YOUR ADVANTAGE

Pro Te: Solutio 9

“The more I’m learning about this, the less I know.”— District Court Judge Patti B. Saris

in Average Wholesale Pricing Multidistrict Litigation1

Sc ie N Ce21 57 7 58

Da Y115 39

AA judge’s docket includes a wide range of cases which may deal with issues as diverse as landlord-tenant, employment, child support, and medical malpractice. It comes as no surprise then that a judge, unlike the lawyers on both sides, is unable to devote a significant amount of time to learning about the complicated scientific or technological issues usually involved in pharmaceutical and medical device cases. When the time comes to educate the court about your company’s product or business, what is the best way to do it? The use of court tutorials, or a “Science Day,” devoted to teaching the court — in a neutral setting

— the science involved in your case is be-coming more popular. An effective presen-tation of your position through counsel and experts can set the tone for your case.

When Have Courts Allowed Tutorials?The idea of educating a court about

complex issues unique to the case through a tutorial is not new. The ABA Civil Trial Practice Standards, the Federal Judicial Center’s Manual for Complex Litigation and Reference Manual on Scientific Evidence all endorse tutorials as one way to educate the court on the fundamental issues in the liti-gation.2 Courts in patent cases frequently

order tutorials providing background and education on the technology implicated by the presented claim construction issues. As noted by the United States District Court for the Eastern District of Virginia, “in those instances where the patent sub-ject matter is especially complex and abstruse, district judges may consider extrinsic evidence (usually in the form of expert affidavits, tutorials, or hearing testimony) in the quest to gain further assistance in understanding the underlying science or technology.”3

Like patent cases, pharmaceutical or medical device products liability cases are

10 Pro Te: Solutio

also rife with complex scientific issues. Over a decade ago, litigants presented an all-day “tutorial” to the court on the science related to silicone breast implants and the plaintiffs’ claimed injuries.4 The tutorial prompted the court to appoint technical advisors who ultimately recommended excluding much of the expert evidence supposedly supporting a causal link be-tween breast implants and the plaintiffs’ claimed injuries.5

More recently, judges in coordinated products liability proceedings have been using “private educational meetings to in-form the judicial officers on the science behind the product.”6 For instance, the judges in coordinated proceedings con-cerning products liability claims against the manufacturers of NuvaRing,® Fosamax,® Ortho Evra® products, Bextra,® and Celebr-ex® have each ordered a “Science Day” for tutorials presented by the parties.7

Courts have also benefitted from tutorials in complicated business and antitrust mat-ters. For instance, in In re Pharmaceutical Industry Average Wholesale Price Litigation, some of the defendants asked to present a tutorial relating to drug pricing and reim-bursement prior to a class certification hear-ing to ensure “that the Court’s decision is based on a clear understanding of the rele-vant facts.”8 The judge granted this request and allowed each side to present a “general overview of pricing reimbursement and dis-tribution of pharmaceutical products in the United States.”9

What issues are addressed?Courts ordering tutorials are clear that

“[t]he focus of the presentations shall be solely on education, not argument.”10 In products liability cases involving pharma-ceuticals or medical devices, the court tuto-rials have focused on the type of injuries claimed in the litigation, the terminology used to discuss the product and the injuries claimed, and how the medication or device works and affects the body. But within this discussion, the court may allow the parties to present the science on whether or not the product is associated with the claimed

injury. For example, in the NuvaRing® multidistrict litigation, the “Science Day” will address, among other things, “whether the use of the NuvaRing® increases the pro-pensity of blood clot formations leading to potential deep vein thrombosis and/or pulmonary embolism.”11

How has the information been presented?

There is no single format for a court tutorial. The format of the presentation is almost always determined in advance by agreement of the parties and then pre-sented to the court for consideration. The ABA Civil Practice Standards indicate that courts may consider the following presen-tation formats:

• An in-court or recorded presentation by an expert jointly selected by the parties;

• An in-court or recorded presentation by one or more experts on behalf of each party;

• An in-court or recorded presentation by counsel for each party;

• A combined in-court or recorded pre-sentation by counsel and one or more experts on behalf of each party;

• Recorded presentations that have been prepared for generic use in particular kinds of cases by reliable sources such as the Fed-eral Judicial Center.12

In fact, the cases reflect a good deal of variation in presentation styles. In the Fos-amax® cases coordinated in New Jersey, each side was allowed ninety minute presenta-tions.13 In the average wholesale pricing multidistrict litigation, parties first submit-ted presentations addressing the issues to

the court and then presented tutorial experts at hearing a few days later.14 The tutorial experts provided a thirty-minute summary, and then were subject to a thirty-minute cross examination and a fifteen-minute re-direct.15 In contrast, the court in the Bextra® and Celebrex® multidistrict litigation ordered the parties to “present the ‘science’ in any format they choose.”16

However the information is presented, certain courts may request that the infor-mation be somehow preserved for the court alone so that it can refer to it throughout the litigation. The Ninth Circuit Court of Appeals has specifically endorsed this practice:

I salute the district court and the parties for having held a tutorial on the technology. It was un-doubtedly valuable to the district judge. The only problem is, it was unreported (which is understand-able, as a principal benefit of a tutorial is the opportunity for informal exchange) and thus, it was unavailable to assist us. In future cases where such formats are used — and I encourage it, having benefitted from similar tutorials when I served as a district judge — I urge district judges and litigants to consider the possibility of videotaping the tutorial for whatever assistance it may be to the court of appeals.17

Although the information may be pre-served for the court, in products liability cases, the information is not generally available to the parties for impeachment or other purposes. Treating the tutorial like trial testimony may inhibit the open dia-logue and candid discussion that best serves the educational objective of the tutorial. If an expert presents the tutorial material to the court, he or she generally is not put un-der oath or subject to cross-examination, and the parties ordinarily will not be able to use the presentations in future court proceedings for any purpose.18

The use of court tutorials, or a “Science Day,” devoted to

teaching the court — in a neutral setting — the science involved in your case is becoming more popular.

An effective presentation of your position through counsel and experts

can set the tone for your case.

Courts in patent cases frequently order tutorials providing background and education on the technology implicated by the presented claim

construction issues...Like patent cases, pharmaceutical or medical device products liability cases are also rife with complex scientific issues.

Pro Te: Solutio 11

12 Pro Te: Solutio

Early Requests and Agreed Upon Formats and Subject Matter Increase a Tutorial’s Usefulness

Most courts are receptive to the idea of tutorials, particularly if the parties can agree in advance upon a format and pres-ent the idea in a joint motion to the judge. If a tutorial will benefit your company, have your counsel confer with the other side in an attempt to agree on both a for-mat and use restrictions, and then move for leave to present the tutorial to the court. The request for a tutorial should generally come shortly after assignment to the judge and certainly well before a hearing on any motion that requires applying the science involved in the case. In cases involving class issues, such as the average wholesale

pricing litigation, the tutorial should pre-cede the class certification hearing. In others, such as products liability cases, it should, at a minimum, come before hearings on admissibility of expert testimony.

Tutorials can vary significantly in both format and the breadth of issues addressed. Providing clear guidelines for both format and substance helps ensure that the parties will be addressing the same issues and avoid being faced with subject matters for which their counsel or experts have not prepared. Success of the tutorial depends in part on the parties’ not being able to use it later in the proceedings for impeachment purposes. For this reason, it is essential that the order agreed upon address whether the presen-tations will be transcribed, videotaped, or otherwise recorded as well as restrictions on future use of the information presented.

In addition to considering prior orders for “Science Day,” counsel should check the local rules for potential format guide-lines. For instance, the United State Dis-trict Court for Minnesota’s local rules provide that tutorials in patent cases need not be videotaped, and “[s]hould the par-ties determine that a format other than video tape be more appropriate, such as a DVD or a computerized presentation, they may suggest the format at the initial pre-trial conference.”19

In an ideal world, judicial decisions would be based on perfect information. In the real world, the litigating parties must deal with time and space constraints in presenting the facts underlying their case. Court ordered tutorials provide an oppor-tunity for the parties to educate the court in a neutral setting. The presentation of an effective tutorial pushes the real courtroom a little closer to the perfect courtroom.

1 In re Pharmaceutical Industry Average Wholesale Price Litigation, MDL No. 1456, Civil Action No. 01-CV-12257 PBS, “The Track One Defendants’ Motion for Leave to Present a Tutorial to the Court Regarding Pharmaceu-tical Pricing Reimbursement” at 3 (D. Mass. September 16, 2004).2 Civil Practice Standards, American Bar Association, updated August 2007 at p. 12; MCL 4th §33.23 at 615; Reference Manual on Scientific Evidence, Second, Annotated, “Management of Expert Evidence” at 43 (West 2005).3 Synthon IP Inc. v. Pfizer Inc. 446 F.Supp.2d 497, 505 (E.D. Va., 2006); see also Takeda Chemical Industries, Ltd. v. Mylan Laboratories, Inc., 417 F.Supp.2d 341, 344 (S.D.N.Y. 2006) (holding a science tutorial at the outset of trial).4 Hall v. Baxter Healthcare Corp., 947 F. Supp. 1387, 1415 (D. Or. 1996).5 Id. at 1414-15.6 In re: Ortho Evra Products Liability Litigation, MDL No. 1742, Case No. 1:06-40000, “Case Management Order No. 19” (N.D. Ohio June 12, 2007).7 Id.; In re: NuvaRing Products Liability Litigation, 4:08 MDL 1964 RWS, “Stipulated Order Granting Defen-dants’ Motion for a NuvaRing ‘Science Day’” (E.D. Mo. July 22, 2009); In re: Fosamax Litigation, Case No. 282, “Order Concerning Science Day” (Super. Ct. N.J. Atl. Co. January 9, 2009); In re: Bextra and Celebrex Market-ing Sales Practices and Product Liability Litigation, MDL No. 1699, Case No. M:05-cv-01699-CRB, “Order re: Tutorial Transcript” (N.D.Cal. October 11, 2006). 8 In re Pharmaceutical Industry Average Wholesale Price Litigation, MDL No. 1456, Civil Action No. 01-CV-12257 PBS, “The Track One Defendants’ Motion for Leave to Present a Tutorial to the Court Regarding Phar-maceutical Pricing Reimbursement” at 3 (D. Mass. Sep-tember 16, 2004).

9 In re Pharmaceutical Industry Average Wholesale Price Litigation, MDL No. 1456, Civil Action No. 01-CV-12257 PBS, “Case Management Order No. 12 Tutorial Procedures in Connection with Class Certification Mo-tion” (D. Mass. October 20, 2004); see also McCoy v. Health Net, Inc. 569 F.Supp.2d 448, 452 (D.N.J. 2008) (noting that the court held a “tutorial” hearing to better understand insurer’s out-of-network claims process prior to approval of settlement).10 In re: NuvaRing Products Liability Litigation, 4:08 MDL 1964 RWS, “Stipulated Order Granting Defen-dants’ Motion for a NuvaRing ‘Science Day’” (E.D. Mo. July 22, 2009); see also Amgen, Inc. v. Ariad Pharmaceu-ticals, Inc., Civil Action No 06-259-KAJ, “Scheduling Order,” (D. Del. July 19, 2006) (ordering that the tech-nology tutorial “should focus on the technology at issue and should not be used to argue the parties’ claim con-struction contentions”).11 Id.12 Civil Practice Standards, American Bar Association, updated August 2007 at p. 12.13 In re: Fosamax Litigation, Case No. 282, “Order Con-cerning Science Day” (Super. Ct. N.J. Atl. Co. January 9, 2009). 14 In re Pharmaceutical Industry Average Wholesale Price Litigation, MDL No. 1456, Civil Action No. 01-CV-12257 PBS, “Case Management Order No. 12 Tutorial Procedures in Connection with Class Certification Mo-tion” (D. Mass. October 20, 2004). A redacted version of the plaintiffs’ written tutorial is available through PACER at docket no. 1222, filed December 9, 2004. A transcript of the defendants’ submitted tutorial is available through PACER at docket no. 1224, filed December 10, 2004.15 Id.16 In re: Bextra and Celebrex Marketing Sales Practices and Product Liability Litigation, MDL No. 1699, Case No. M:05-cv-01699-CRB, “Order re: Tutorial Transcript” (N.D.Cal. October 11, 2006). 17 Altera Corp. v. Clear Logic, Inc., 424 F.3d 1079, 1093 (9th Cir. 2005).18 See, e.g., In re: NuvaRing Products Liability Litigation, 4:08 MDL 1964 RWS, “Stipulated Order Granting De-fendants’ Motion for a NuvaRing ‘Science Day’” (E.D. Mo. July 22, 2009) (“If a science day presenter later be-comes a witness in the litigation, the presentation may not be used to cross-examine or impeach the presenter”); In re: Fosamax Litigation, Case No. 282, “Order Con-cerning Science Day” (Super. Ct. N.J. Atl. Co. January 9, 2009) (“No part of these presentations shall be admis-sible for any reason in any future proceeding, be they in a court of law, arbitration session, mediation session, or otherwise); In re: Bextra and Celebrex Marketing Sales Practices and Product Liability Litigation, MDL No. 1699, Case No. M:05-cv-01699-CRB, “Order re: Tuto-rial Transcript” (N.D.Cal. October 11, 2006) (“because the tutorial is an informal proceeding designed to edu-cate the court on the background science, the transcript of the tutorial may not be used in any subsequent MDL 1699 proceeding for any purpose”). 19 2005 Advisory Committee’s Note to Local Rule 16.2 and Form 4 and 5 of the United States District Court for the District of Minnesota.

Tutorials can vary significantly in both format and the breadth of

issues addressed. Providing clear guidelines for both format and

substance helps ensure that the parties will be addressing the same

issues and avoid being faced with subject matters for which their counsel or experts have not prepared.

Written by Lisa M. Martin

The following states do not recognize medical monitoring claims:

Alabama: Houston County Health Care Authority v. Williams, 961 So.2d 795 (Ala. 2007).

Connecticut: Doe v. City of Stamford, 699 A.2d 52, 55 (Conn. 1997) (recognizing medical monitoring only in workers’ compensation context).

Kentucky: Wood v. Wyeth-Ayerst Labs, 82 S.W.3d 849 (Ky. 2002).Louisiana: By statute: La. Civ. Code Ann. art. 2315 (1998).Michigan: Henry v. Dow Chemical Co., 701 N.W.2d 684 (Mich. 2005).Minnesota: Bryson v. Pillsbury Co., 573 N.W.2d 718 (Minn. Ct. App. 1998).Mississippi: Paz v. Brush Engineered Materials, Inc., 949 So.2d 1 (Miss. 2007).Nevada: Badillo v. American Brands, Inc., 16 P.3d 435 (Nev. 2001).North Carolina: Curl v. American Multimedia, Inc., 654 S.E.2d 76 (N.C.

App. 2007).Oregon: Lowe v. Philip Morris USA, Inc., 183 P.3d 181 (Or. 2008).

States in which federal courts have made an Erie “guess” that the state will not recognize medical monitoring claims:

Georgia: Parker v. Brush Wellman, Inc., 377 F. Supp.2d 1290 (N.D. Ga. 2005), affirmed in part, 230 Fed. Appx. 878 (11th Cir. 2007).

Kansas: Burton v. R.J. Reynolds Tobacco Co., 884 F. Supp. 1515 (D. Kan. 1995).Nebraska: Schwan v. Cargill, Inc., 2007 WL 4570421 (D. Neb. 2007); Avila v.

CNH America LLC, 2007 WL 2688613 (D. Neb. 2007).North Dakota: Mehl v. Canadian Pacific Railway Ltd., 227 F.R.D. 505 (D.N.D.

2005).Oklahoma: Cole v. ASARCO, Inc., 2009 WL 920581 (N.D. Okla. 2009).South Carolina: Rosmer v. Pfizer, Inc., 2001 WL 34010613 (D.S.C. 2001).Tennessee: Bostick v. St. Jude Medical, Inc., 2004 WL 3313614 (W.D. Tenn.

2004).Texas: Norwood v. Raytheon Co., 414 F. Supp.2d 659 (W.D. Tex. 2006).Virginia: Stead v. F.E. Myers Co., 785 F. Supp. 56 (D. Vt. 1990).Washington: Duncan v. Northwest Airlines, Inc., 203 F.R.D. 601 (W.D. Wash.

2001).

States recognizing medical monitoring claims:

Arizona: Burns v. Jaquays Mining Co., 752 P.2d 28 (Ariz. App. 1987).California: Potter v. Firestone Tire & Rubber Co., 863 P.2d 795 (Cal. 1993).Florida: Petito v. A.H. Robins Co., 750 So.2d 103 (Fla. App. 1999); Zehel-Miller v.

AstraZeneca Pharmaceuticals, LP, 223 F.R.D. 659 (M.D. Fla. 2004) (recognizing medical monitoring, but not in strict liability context).

Missouri: Meyer v. Fluor Corp., 220 S.W.3d 712 (Mo. 2007).New Jersey: Mauro v. Raymark Industries, Inc., 561 A.2d 257 (N.J. 1989) (recog-

nizing medical monitoring); Sinclair v. Merck & Co., 948 A.2d 587 (N.J. 2008)(explaining that while recognized in environmental context, medical monitoring is not available in product liability actions).

Pennsylvania: Redland Soccer Club v. Department of the Army, 696 A.2d 137 (Pa. 1997) (recognizing medical monitoring in negligence but not in strict liability).

Utah: Hansen v. Mountain Fuel Supply Co., 858 P.2d 970 (Utah 1993).West Virginia: In re West Virginia Rezulin Litigation, 585 S.E.2d 52 (W.Va. 2003).

States in which federal courts have made an Erie “guess” that the state will recognize medical monitoring claims:

Colorado: Cook v. Rockwell International Corp., 755 F. Supp. 1468 (D. Colo. 1991).Ohio: Day v. NLO, Inc., 851 F. Supp. 869 (S.D. Ohio 1994).Vermont: Stead v. F.E. Myers Co., 785 F. Supp. 56 (D. Vt. 1990).

States with conflicting authority on medical monitoring claims:

Delaware: Mergenthaler v. Asbestos Corp., 480 A.2d 647 (Del. 1984) (refusing medical monitoring in asbestos context); Hess v. A.I. duPont Hospital for Children, 2009 WL 595602 (E.D. Pa. 2009) (federal court allowing medical monitoring under Erie), cert. granted 2009 U.S. Dist. Lexis 77589 (E.D. Pa. 2009).

Illinois: Stella v. LVMH Perfumes & Cosmetics USA, Inc., 564 F. Supp.2d 833 (N.D. Ill. 2008); See Jensen v. Bayer AG, 862 N.E.2d 1091, 1100-1101 (Ill. App. 2007) (lower state court case stating medical monitoring claims do not have sufficient merit).

Indiana: Johnson v. Abbott Laboratories, 2004 WL 3245947 (Ind. Cir. 2004) (not recognizing medical monitoring claims); Allgood v. General Motors Corp. 2005 WL 2218371 (S.D. Ind. 2005) (refusing to dismiss medical monitoring claims).

New York: Abusio v. Consolidated Edison Co., 656 N.Y.S.2d 371 (N.Y. A.D. 1997) (not allowing medical monitoring); Allen v. General Electric Co., 821 N.Y.S.2d 692 (N.Y. A.D. 2006) (allowing medical monitoring).

States yet to address the issue:

AlaskaArkansasHawaiiIdahoIowaMaineMaryland: Philip Morris Inc. v. Angeletti, 752 A.2d 200 (Md. 2000) (considering

the issue but expressly leaving the issue of medical monitoring to the legislature).MassachusettsMontanaNew HampshireNew MexicoRhode IslandSouth DakotaWisconsinWyoming

Written by Ben J. sCott

Pro Te: Solutio 13

A Multi-StAte Survey ConCerning reCognition of MediCAl Monitoring ClAiMS

When plaintiffs allege a risk of future injury, some states allow claims for “medical monitoring,” or the cost of future medical care for the purpose of monitoring a yet-to-occur medical condition or injury. Another

group of states has declared such independent medical monitoring claims as not actionable, while still others have no law on the subject or only a federal court’s “guess” as to state law on the subject, per the Erie doctrine.

V.C a s e L a w

14 Pro Te: Solutio

MPro Te: Solutio 1514 Pro Te: Solutio

Most everyone in the business world understands the significance of class certification. If a class is certified, the risk of tremendous monetary exposure may outweigh any potential benefit of taking a case to trial. As a result, the class certifica-tion stage of many cases is, in a real sense, dispositive. If a class is certified, plaintiffs’ counsel may conclude the company cannot risk taking the case to trial and may demand exorbitant settlement amounts. If a court denies class certification, cases can be handled either in “one-off” fashion or in small groups or, in the commercial context, many cases lose all mon-etary value for plaintiffs’ counsel and the case is put to rest.

In most jurisdictions, there is a significant trend away from certifying class actions in traditional product liability actions involv-ing prescription pharmaceuticals or medical devices. Although there are variations, many courts now recognize that questions of indi-vidual causation and exposure render class treatment inappropriate in personal injury cases.1 But a new wave of class actions is be-coming prevalent. Almost weekly, one sees class action complaints alleging price fixing, market manipulation, anti-competitive con-

trol of generic products, and other commer-cial-based claims. These cases represent a serious threat: There is no trend away from certifying class actions in these purely com-mercial disputes. Moreover, because there is less likelihood that individual questions may dominate and render class treatment inap-propriate, plaintiffs in these cases may be able to satisfy the traditional Rule 23 require-ments for class certification (numerosity, commonality, typicality, and protection of class interests by the representative parties).

In recent years, courts have begun to rec-ognize that the decision to certify a class is often equivalent to or worse than a jury ver-dict against a defendant.2 This realization has led many courts, including several Unit-ed States Courts of Appeals, to apply greater scrutiny at the class certification stage, even when expert testimony is offered in support of or in opposition to class certification. This article discusses the developing case law on how courts treat class certification in complex commercial cases and suggests that

Class CertifiCation in CompLex

CommeRCiaL Litigation

Defeating

16 Pro Te: Solutio

the greater scrutiny now applied at the class certification stage presents a higher hurdle than that previously imposed on plaintiffs seeking to certify a class.

“Rigorous Analysis” at Class Certification Stage

Beginning in 1982, the United States Su-preme Court in General Telephone Co. v. Falcon recognized that a “rigorous analysis” is required in determining whether to certify a class.3 Over the past several years, the fed-eral courts of appeals have come to a general consensus that, at the class certification stage, the “rigorous analysis” standard set forth in General Telephone requires trial courts to look behind the pleadings to re-solve any factual and legal issues necessary to determine whether the requirements of Rule 23 are satisfied. In other words, courts may no longer employ a deferential, 12(b)(6)-like standard, where the plaintiff’s alle-gations in support of certification are con-strued in the light most favorable to the plaintiff, at the class certification stage. In-stead, courts must now identify and resolve factual disputes that affect the decision on class certification. The following cases illus-trate this trend:

• Regents of the Univ. of California v. Credit Suisse First Boston (USA), Inc., 482 F.3d 372 (5th Cir. 2007) — examination of factual and legal issues at class certification stage “enjoys wide acceptance in the courts of appeals”;

• In re Initial Public Offering Securities Litigation, 471 F.3d 24 (2nd Cir. 2006) — disavowing earlier decision holding that court did not have authority to weigh competing expert submissions on class cer-tification question (see In re Visa Check/MasterMoney Antitrust Litigation, 280 F.3d 124 (2nd Cir. 2001)) and holding that district judge is required to assess “all of the relevant evidence admitted at the class certification stage and determine whether each Rule 23 requirement has been met”;

• Unger v. Amedisys Inc., 401 F.3d 316, 321 (5th Cir. 2005) — “Rule 23 requires the court to ‘find,’ not merely assume, the facts favoring certification”;

• Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 675 (7th Cir. 2001) — holding that it is error for the district court to certify a class without “resolving factual and legal disputes that strongly influence the wisdom of class treatment.”

Although there are cases — particularly at the district court level — that ignore this trend,4 these circuit court decisions provide a fairly wide swath of authority for the prop-osition that courts must resolve factual and legal disputes necessary to decide Rule 23 certification issues.

Dueling ExpertsParticularly in complex commercial cases

involving technical issues, litigants regularly seek to introduce expert testimony at the class certification stage either to establish or challenge the requirements for class certifi-cation. Although General Telephone and its progeny support a rigorous analysis at class certification, courts have grappled with how to handle such expert testimony. Some courts have employed a “Daubert-light” standard,5 while others require the trial courts to assess the reliability of an expert’s proposed testimony before ruling on class certification.6 The treatment of expert testi-mony at the class certification stage is fairly characterized as a “tricky question,”7 but case law supports the argument that courts may no longer rubber-stamp expert opin-ions offered in support of class certification. Two recent examples involving price fixing and antitrust allegations shed light on how courts are addressing this issue, and they illustrate how litigants may best prepare for and defend against class certifi-cation efforts.

In re Hydrogen Peroxide Antitrust Litigation (“Hydrogen Peroxide Litigation”)8

In the Hydrogen Peroxide Litigation, the plaintiffs sought to certify a class of pur-chasers who claimed that various chemical manufacturers conspired to fix prices of hydrogen peroxide and other products. The core issue at the class certification stage

was whether the plaintiffs could show that the element of antitrust impact required to prevail on their claims could be demon-strated at trial by evidence that was com-mon to the class rather than to individual members. In support of their argument for class certification, the plaintiffs offered the opinion of an expert economist who iden-tified two potential approaches (regression analysis and bench-mark analysis) to prove that the alleged conspiracy to fix prices would have impacted all purchasers of the defendants’ products. The defendants offered the opinion of their own econo-mist, who criticized the plaintiffs’ expert’s “potential” approaches for estimated dam-ages on a class-wide basis and conducted an empirical analysis showing that the al-leged transactions and conspiratorial acts did not affect purchasers in the same way. Finding it inappropriate to weigh the con-flicting testimony of the parties’ experts, the lower court certified a class in favor of the plaintiffs.

On appeal, the Third Circuit emphasized that weighing conflicting expert testimony at the class certification stage may be “inte-gral” to the rigorous analysis required under Rule 23:

Resolving expert disputes in order to determine whether a class certi-fication requirement has been met is always a task for the court — no matter whether a dispute might appear to implicate the ‘credibility’ of one or more ex-perts, a matter resembling those usually reserved for the trier of fact. Rigorous analysis need not be hampered by a concern for avoiding credibility issues […].9

Applying this standard, the Third Circuit determined that the district court had im-properly declined to resolve the competing expert opinions offered for and against class certification. As a result, the court vacated the district court’s ruling on class certification and remanded for a resolution of these issues.

Pro Te: Solutio 17

The greater scrutiny now applied at the class certification stage presents

a higher hurdle than that previously imposed on plaintiffs seeking to certify a class.

18 Pro Te: Solutio

There is now a trove of case law supporting the proposition that plaintiffs cannot

rely on bare allegations to satisfy Rule 23 and obtain class certification.

Pro Te: Solutio 19

In re EPDM Antitrust Litigation (“EPDM”)10

Like the Hydrogen Peroxide Litigation, EPDM involved antitrust allegations of price fixing by purchasers of synthetic materials. But instead of offering “possible” approaches to addressing damages at trial, the plaintiffs in EPDM offered regression analyses from economic experts demonstrating that dam-ages could be proven on a class-wide basis to demonstrate class-wide impact. In response, the defendants offered expert testimony that challenged the results of the plaintiffs’ regres-sion analyses, instead arguing that appro-priate regression methodologies indicated there was no class-wide impact from the alleged conduct. The case therefore presented classic “dueling expert” opinions. One expert’s results produced a plaintiff-friendly answer; another expert’s results produced a defen-dant-friendly answer.

The district court recognized its obliga-tion to conduct a rigorous analysis and, when necessary, to resolve conflicting expert opinions affecting class certification. The court acknowledged the Third Circuit’s directive in the Hydrogen Peroxide Litigation, but it emphasized that the questions it confronted were different from those in Hydrogen Peroxide. In Hydrogen Peroxide, the plaintiffs’ expert had only offered possible statistical approaches to proving class-wide damages and impact while the defendants’ expert had actually conducted the analyses to show such an approach was impossible. Here, the plaintiffs’ expert actually conduct-ed a statistical analysis purportedly demon-strating the existence of class-wide damages, while the defendants’ expert conducted sep-arate analyses showing that there were not class-wide damages and that the methodolo-gies used by the plaintiffs’ experts were fun-damentally flawed. The court was thus faced with conflicting expert opinions.

Given these “polar opposite” opinions, the court refused to make what it concluded was a merits decision. Fundamental to its conclusion was the court’s view that the plaintiffs’ expert had demonstrated a way to prove class-wide damages through general-ized proof. The defendants contended that

their expert showed that the plaintiffs’ expert employed flawed methodologies and there-fore had not shown that class-wide damages could be proved, but the court viewed it dif-ferently. The court reasoned that, rather than disputing the possibility of proving class-wide damages through individualized proof, the defendants’ position was that they disputed the results of the plaintiffs’ model and, in the alternative, offered their own model to show the absence of class-wide impact. Based on this view, the court was not convinced that it was methodologically impossible for the plaintiffs to utilize a single formula to prove class-wide damages. The court declined to make the plaintiffs prove that their expert analysis was the correct one. That they pro-posed a workable methodology — appar-ently even if wrong — was enough to meet their burden at class certification. The court determined that it would be up to a jury to determine which of the experts’ method-ologies and conclusions were correct. The district court’s decision to certify a class is presently on appeal to the United States Court of Appeals for the Second Circuit.

Where Are We Going Now? There is now a trove of case law support-

ing the proposition that plaintiffs cannot rely on bare allegations to satisfy Rule 23 and obtain class certification. Instead, courts must conduct at least some inquiry into the merits to determine if the facts support class certification. This support has helped and will continue to help many defendants defeat class certification.

The precise degree of scrutiny which courts must apply at the class certification stage, however, remains an open question. Decisions such as the EPDM ruling suggest that a court may not be required to decide which expert opinion is correct when faced with “polar opposite” opinions. But In re IPO lends support to the position that conflicting expert opinions that affect the requirements for class certification must be resolved at the class certification stage — regardless of whether they also implicate the merits of the case. Given the implication of rulings on class certification, the decisions

will continue to be appealed, and appellate rulings will shed more light on how lower courts are to address these issues at class certification. In the interim, there is ample authority supporting the position that courts must do far more than rubber stamp deci-sions on class certification. Some degree of heightened scrutiny is required, and in many instances that scrutiny must overlap issues affecting the merits of the underlying claims in the litigation.

1 See, e.g., Henry v. Dow Chemical Co., __N.W.2d__, 2009 WL 2356729 (Mich. July 31, 2009) (overturning certification of class action where trial court failed to ap-ply “rigorous analysis” standard now applied by federal courts in determining whether each of the prerequisites for class certification is satisfied); In re Welding Fume Products Liability Litigation, 245 F.R.D. 279 (N.D. Ohio 2007) (declining to certify class where plaintiffs’ exposures to fumes generated during welding processes were vastly different and thus could not satisfy the typi-cality requirement).2 See In re Hydrogen Peroxide Antitrust Litigation, 552 F.3d 305, 310 (3rd Cir. 2008) (“Careful application of Rule 23 accords with the pivotal status of class certification in large-scale litigation, because denying or granting class certification is often the defining moment in class actions (for it may sound the ‘death knell’ of the litigation on the part of plaintiffs, or create unwarranted pressure to settle nonmeritorious claims on the part of defendants”). 3 See General Telephone Co. v. Falcon, 457 U.S. 147, 161 (1982). 4 See, e.g., Bentley v. Honeywell Int’l, Inc., 223 F.R.D. 471 (S.D. Ohio 2004) (stating that it was inappropriate for the court to inquire into the merits of underlying claims at the class certification stage and refusing to resolve fac-tual disputes); In re Natural Gas Commodities Litigation, 231 F.R.D. 171, 182 (S.D.N.Y. 2005) (“At the class certi-fication stage, the court should not delve into the merits of an expert’s opinion, or indulge in ‘dueling’ between opposing experts”). 5 See Turner v. Murphy Oil, 2006 WL 91364 (E.D.La. Jan. 12, 2006). 6 See In re Initial Public Offering Securities Litigation, 471 F.3d 24 (2nd Cir. 2006). 7 Fogarazzo v. Lehman Brothers, Inc., 2005 WL 361205, *1 (S.D.N.Y. Feb.16, 2005) (although “rigorous analysis” required, class certification is not an occasion for resolu-tion of the merits of a case; as a result the “question of whether an expert opinion is an appropriate tool in deter-mining whether a class may be certified is a tricky one”). 8 In re: Hydrogen Peroxide Antitrust Litigation, 552 F.3d 305 (3rd Cir. 2008).9 Id. at 324. 10 In re Ethylene Propylene Diene Monomer (EPDM) Anti-trust Litigation, 256 F.R.D. 82 (D. Conn. 2009).

Written by eriC hudson

Team MembersRobert G. “Bob” Anderson

Melissa BaltzAmanda B. Barbour Effie V. Bean Cozart

P. Ryan BeckettKelly P. BridgforthDenise D. BurkeDonald Clark, Jr.

Kimberly S. CogginCharles R. Crawford

John A. “Jack” Crawford, Jr.Mark A. Dreher

William M. GageMark W. GarrigaCharles C. HarrellMichael B. Hewes

Eric HudsonChad R. HutchinsonDonna Brown Jacobs

David P. JaquaAlyson Bustamante Jones

James J. Lawless, Jr. Karen E. Livingston-Wilson

Lisa M. MartinAnita Modak-TruranCharles F. Morrow

Amy M. PepkeOrlando R. Richmond, Sr.

Benjamin W. RobersonM. Elizabeth Saxton

Ben J. ScottMachelle D. Shields

Bart N. SiskHollie A. SmithAdam J. Spicer

James P. StanzellKari L. SutherlandRonald G. TaylorJulie W. Watson

Thomas E. Williams Malissa Winfield

For additional information, including bios and contact information, please visit us at www.butlersnow.com.

Pharmaceutical, medical device & healthcare GrouP

20 Pro Te: Solutio

Pharmaceutical, medical device & healthcare GrouP

www.butlersnow.com