Class action litigants often present courts with expert testimony in arguing why a case should or should not be certified as a class action. Should a court consider expert testimony at the class-certification stage, and if so, what standard should it employ in admitting and evaluating such testimony? The recent blockbuster decision in Dukes v. Wal-Mart Stores Inc., 603 F.3d 571 (9th Cir. 2010) (en banc), highlights the fact that some courts still disagree on how to answer these questions. Unfortunately, the U.S. Supreme Court’s limited grant of certiorari in Dukes does not offer much hope that the Supreme Court will give specific guidance on the issue anytime soon. See id., cert. granted in part, 2010 WL 3358931, at *1 (U.S. Dec. 6, 2010).

The fundamental basis for the difference of opinion reaches back to the Supreme Court’s direction in Eisen v. Carlisle and Jacquelin, 417 U.S. 156 (1974), that district courts should not decide the merits of the case to determine whether the class should be certified. Many courts used Eisen to take a very hands-off approach to class certification, refusing to consider at the class-certification stage evidence or arguments that relate to the merits.

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