December 1, 2006

Does The New “DAUBERT LITE” Test For Class Certification Eviscerate Rule 23(f) In Antitrust Cases?

The Antitrust Practitioner
Laurie Webb Daniel

Laurie Webb Daniel examines the interaction of four key pretrial decisions in class action litigation: initial certification, the Daubert inquiry, appellate review of a certification order under Rule 23(f), and decertification. She shows that recent decisions do not require a full Daubert hearing before the initial decision on class certification, in part because the district court can later modify the certification 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 certification decision to a stage at which the record is inadequate.

READ: Does The New “DAUBERT LITE” Test For Class Certification Eviscerate Rule 23(f) In Antitrust Cases?

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