For The Defense, October 2010 - DRI Today

vidual issues and the class action device issuperior to other methods available to adjudicatethe controversy). Both have similarrequirements to ensure the class actiondevice is appropriate for the circumstancesof a given case.The “predominance” and “superiority”requirements of Fed. R. Civ. P. 23(b)(3)attempt to ensure that the class device is notmisused. Courts have recognized that thepresence of individual issues of causationor reliance destroys predominance underFed. R. Civ. P. 23(b)(3). See, e.g., Basic Inc.v. Levinson, 485 U.S. 224, 242 (1988) (“individualissues [would overwhelm] commonones” in case where “proof of individualizedreliance from each member of [a] proposedplaintiff class” is required); Johnstonv. HBO Film Mgmt., Inc., 265 F.3d 178, 194(3d Cir. 2001) (where “plaintiffs were notentitled to a presumption of reliance,” districtcourt “did not abuse its discretion inconcluding the plaintiffs failed to establishthe predominance requirement of Rule23(b)”); Broussard v. Meineke Disc. MufflerShops, Inc., 155 F.3d 331, 342 (4th Cir. 1998)(“because reliance ‘must be applied withfactual precision,’ plaintiffs’ fraud and negligentmisrepresentation claims do not providea ‘suitable basis for class-wide relief”)(quoting Jensen v. SIPCO, Inc., 38 F.3d 945,953 (8th Cir. 1994)). Thus, where reliance isuncontested, courts are reluctant to allowaggregate treatment of a claim since individualissues will predominate.Plaintiffs seeking classwide damages forconsumer fraud act violations sometimestry to invoke Fed. R. Civ. P. 23(b)(2) whenseeking certification. Federal Rule 23(b)(2)was intended to apply primarily to equitableclaims and any monetary relief awardedwas to be incidental to the equitable, injunctiverelief sought by plaintiffs. Zinser v.Accufix Research Inst., Inc., 253 F.3d 1180,1195 (9th Cir. 2001). Thus, courts have heldthat “class certification under Rule 23(b)(2) is proper only when the primary reliefsought is declaratory or injunctive.” In reSt. Jude Med., Inc., 425 F.3d 1116, 1121 (8thCir. 2005). In fact, the United States SupremeCourt has previously held there is“at least a substantial possibility” that actionsseeking monetary damages are onlycertifiable under Fed. R. Civ. P. 23(b)(3),which provides class members with noticeand the right to opt-out. See Ticor Title Ins.Co. v. Brown, 511 U.S. 117, 121 (1994) (emphasisadded). Even assuming a case mightqualify for treatment under Fed. R. Civ. P.23(b)(2), courts have noted that because thatrule does not require notice or the right toSINCE 1980, the economistsand analysts at the Center forForensic Economic Studieshave worked closely with plaintiff anddefense attorneys from both small andlarge firms and a wide variety ofbusinesses and government agencies.We assist with discovery, uncover keydata, critique opposing claims andproduce clear, credible reports andtestimony. Attorneys and their clientshave relied on our expertise inthousands of cases in jurisdictionsacross the country.Our areas of concentration includePersonal Injury / Wrongful Death;Commercial Loss / BusinessInterruption; Damages in EmploymentLitigation; Statistical Analysis of Liabilityin Employment Claims; and BusinessValuation.opt-out, the proposed class must exhibit“cohesiveness” as a condition precedent tocertification. See Newberg §4:11 at 61 (“Rule23(b)(2) includes an implicit ‘cohesiveness’requirement, which precludes certificationEconomic Damages AnalysisLitigation consulting in injury, commercial and employment mattersContact us to discuss how we can helpyou prepare and present yourdamages case.Some senior staff membersPia Di Girolamo, PhDBernard Lentz,PhDT H E C E N T E R F O RFORENSIC ECONOMIC STUDIESThirty years of service: 1980 - 20101608 WALNUT STREET, PHILADELPHIA, PENNSYLVANIA 19103WWW.CFES.COM 800.966.6099 CFES@CFES.COMChad L. StallerMBA, JD, MACJames Markham,PhD, JD, CPCUFor The Defense n October 2010 n 45