The competing expert testimony typically centers on whether the claims can beproven with common evidence although they can be used for many other purposes(e.g. numerosity, feasibility of notice, merits issues, etc.). Daubert motions, whichtest the admissibility of expert testimony, are an essential part of almost every classcertification battle and the U.S. Supreme Court has focused on expert testimony inseveral of its recent class certification decisions. Does the court apply thesame Daubert standard at class certification as it does before trial? Does the expertrely upon admissible evidence? Does the testimony “fit” the legal theory and claims?Would the testimony be admissible in an ordinary single plaintiff case? Should theplaintiff or defendant hire a consulting expert to assist in litigating the case? Howcan an expert use sampling to support claims of class-wide liability or impact?Finally, corporations must consider settlement from the very beginning of a classaction and the desire for a final global resolution can drive decision-making in termsof overall defense strategies. Defendants may decide not to remove or compelarbitration; plaintiffs may avoid issuing press releases to avoid copycat cases.Settlement on a class-wide basis pose myriad strategic issues. When the defensehas decided to settle, a corporation will normally want the most expansive classdefinition and the broadest release, even though it has vociferously opposed anycertification earlier in the case. When the terms of a settlement are finallyhammered out, the plaintiff’s lawyer and defense counsel share a common goal ofobtaining approval and will then join forces to this end and against any objectorswho oppose the accord.These crucial issues are inevitably posed by any class action litigation. By their verynature, class actions involve decisions on strategy at every turn. The positions of theparties are constantly changing and corporate defendants must always be lookingahead and anticipating issues during every phase of the litigation.We hope the Duane Morris Class Action Review provides practical insights intocomplex potential strategies relevant to all aspects of class action litigation andother claims that can cost billions of dollars and require changed business practicesin order to resolve.40© Duane Morris LLP 2023Duane Morris Class Action Review – 2023
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