Does The New “DAUBERT LITE” Test For Class Certification Eviscerate Rule 23(f) In Antitrust Cases?
The Antitrust Practitioner
December 1, 2006
Laurie Webb Daniel- Atlanta
Laurie Webb Daniel examines the interaction of four key pretrial decisions in class action litigation: initial certifi cation, the Daubert inquiry, appellate review of a certifi cation order under Rule 23(f), and decertifi cation. She shows that recent decisions do not require a full Daubert hearing before the initial decision on class certifi cation, in part because the district court can later modify the certifi cation order or decertify the class. Other decisions, however, suggest later decisions on motions to decertify may not be appealable under Rule 23(f), which permits appellate review “within 10 days of the [certifi cation] order.” Ms. Daniel argues that, taken together, these decisions may thwart the policies of Rule 23(f) by limiting appellate review of the certifi cation decision to a stage at which the record is inadequate.
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