Use of Expert Testimony at the Class Certification Stage After Wal-Mart v. Dukes
The United States Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes sent a strong message to federal courts to look skeptically at class certification orders sought by plaintiffs’ counsel. Many questions remain, however, as to how the opinion should be applied, and what “rigorous analysis” of the class certification elements entails. In particular, the lower courts have not yet fully resolved how expert testimony and statistical proof should be considered. Further clarity from the Court may yet be required to ensure that lower courts follow the message intended to be sent by the Wal-Mart decision: that the lower courts enforce all the requirements of Rule 23, and ensure that competent evidence supports whatever conclusions are drawn during class certification proceedings.