A few weeks ago, The Mogin Law Firm, P.C. posted an analysis of the Supreme Court’s decision in Tyson’s Foods v. Bouaphakeo the potential implications of that decision to antitrust class cases. Tyson’s Foods held that (1) representative statistical evidence, including averages, are acceptable to establish class-wide liability, including for class certification purposes; and, (2) that the presence of uninjured class members does not defeat class certification and plaintiffs are not required to show that there is a mechanism to identify uninjured class members and ensure that they are excluded from damages calculations and from recovering damages .
Last week, the Supreme Court declined a second opportunity to opine on the methodologies employed by economic experts to prove damages in class cases. In Wal-Mart Stores Inc. and Sam’s East, Inc. v. Michelle Braun and Dolores Hummel et al., petitioner Wal-Mart argued that Pennsylvania state courts erred in certifying a class and upholding a judgment in favor of that class where the plaintiffs’ expert calculated damages, according to Wal-Mart, based on “extrapolated results” taken from a subset of class members during an abbreviated time period. Without explanation (as is customary for the Supreme Court), the high court denied Wal-Mart’s petition for a writ of certiorari. Both Tysons Foods and Wal-Mart turned on defendants’ efforts to exploit the Supreme Court’s comments regarding “trial by formula,” in its 2011 Dukes v. Wal-Mart decision, as being inconsistent with the traditional Rule 23 analysis. In each case, the defendants and their amici argued for disaggregation of the class through such vehicles as disallowing the use of averages and other statistical evidence and that the presence of uninjured class members prohibited class certification. Have these efforts to emasculate class certification failed? Perhaps. At least for the time being.
MLF’s previous blog post discussing the implications of Tyson Foods can be found here.
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