Duane Morris Class Action Review - 2023 - Report - Page 274
that the potential fees they would experience under the COB required immediate review
by the Sixth Circuit. Id. at *9. However, the Sixth Circuit rejected this reasoning and
instead stated that the fees had not been confirmed at this time and needed to be
approved by the district court. Id. Further, the Sixth Circuit reiterated its holding that a
writ of mandamus was not an appropriate mechanism to challenge an unfavorable
discovery ruling. Id. at *10-11.
I.
Expert Issues In Class Actions
At the class certification phase, expert reports can be used by either the plaintiffs or the
defendants to support certifying the class claims, block certification, or for decertifying a
class. The proverbial “battle of the experts” is often the focus of the class certification
process. In 2022, several key opinions were issued regarding the use of expert reports
for certifying a class in a class action.
In Koehler, et al. v. Infosys Technologies Limited Inc., 2022 U.S. Dist. LEXIS 165646
(E.D. Wis. Sept. 14, 2022), the plaintiffs alleged that the defendant subjected
applications and employees to discrimination on the basis of their Caucasian race and
their American national origin and provided preferential treatment to those of South
Asian race and Indian national origin. In support of their motion for class certification,
the plaintiffs relied on an expert report that analyzed data using name recognition to
categorize individuals as of South Asian race or national origin. The defendant moved to
exclude this expert testimony on the grounds that the methodology used in the expert
report was not sound. The court granted the motion. The court ruled that the expert’s
methodology for identifying the race and national origin of incumbent employees and
applicants was unreliable. The court therefore granted the defendant’s motion to
exclude the plaintiffs’ expert report. The court also denied plaintiffs’ motion for class
certification given the motion was premised on the analysis provided by the expert
report.
In contrast, the court in Munro, et al. v. University Of Southern California, 2022 U.S.
Dist. LEXIS 208894 (C.D. Cal. Nov. 1, 2022), found an expert report was appropriate
after it analyzed testimony from the expert supporting their methodology in connection
with the plaintiffs’ motion for class certification. In this matter alleging violations of the
ERISA in the management of the defendants’ retirement and annuity plans, the
defendants moved to exclude the expert testimony of John Hare, Edward O’Neal, and
Ty Minnich and the plaintiffs moved to exclude the defense expert testimony of Steven
Gissiner. The court granted in part the defendants’ motion and denied the plaintiffs’
motion. The plaintiffs asserted that the defendants breached the ERISA by failing to
administer the plans “with the care, skill, prudence, and diligence under the
circumstances then prevailing that a prudent man acting in a like capacity and familiar
with such matters would use in the conduct of an enterprise of like character and with
like aims.” Id. at *6-7. Hare’s expert testimony proposed two more “prudent” sets of
alternative investment options that he opined would have produced higher returns than
the investment options actually offered. O’Neal’s expert testimony also estimated the
damages resulting from the defendants’ failure to select these alternative sets of
investment options. Id. at *7. Minnich’s expert testimony asserted that the defendants’
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Duane Morris Class Action Review – 2023
