Supreme Court Declines to Further Opine on Statistical Evidence Proving Damages

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.

THE MOGIN LAW FIRM, P.C. specializes in representing businesses, entrepreneurs, consumers and investors in antitrust, unfair competition and complex business litigation. We have participated in some of the largest antitrust cases in the United States and are frequently requested by other law firms and often consult with law firms engaged in antitrust cases.

DISCLAIMERS: The Mogin Law Firm, P.C. is licensed in California; some of its attorneys may be admitted in other states.  The Mogin Law Firm, P.C.’s publications are designed to provide our clients and contacts with information to help manage their businesses and to provide access to MLF resources.  The content of our publications are for informational purposes only and do not constitute legal or other professional advice or opinions.  In publishing this information, MLF attorneys are not rendering legal or other professional advice or opinions on specific facts or matters, and our publications and website are not substitutes for obtaining legal advice from an attorney.  The Mogin Law Firm, P.C. assumes no liability in connection with the use of this or other MLF publications. The Mogin Law Firm, P.C.’s publications may be considered advertising in some jurisdictions.  The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise.

Sign up to view this Whitepaper