Expert Testimony, Uninjured Class Members, and Article III Standing 

This CLE course will discuss the ramifications arising from the Ninth Circuit’s en banc decision in Olean Wholesale Grocery v. Bumble Bee Foods, 31 F.4th 651 (9th Cir. 2022) (en banc), addressing numerous important class certification issues. The program will address Olean’s critical holdings regarding the evidentiary burden under Rule 23, how expert testimony should be assessed at the class certification stage, and the relevance of injury and Article III standing to assessing Rule 23’s predominance requirement and the scope of a proposed class definition. The panel will discuss the impact Olean will have for both plaintiffs and defendants, and will assess how lower courts have reacted to this important Ninth Circuit ruling.

Description

Olean addresses numerous key class certification issues and outlines a refined framework for class certification that may extend beyond the Ninth Circuit. The decision clarifies the burden of proof under Rule 23 and a district court’s obligation to assess both the admissibility of expert evidence and its adequacy to satisfy the prerequisites of Rule 23. Counsel will need to understand Olean’s holding regarding uninjured class members. While the Ninth Circuit rejected a categorical rule that a class cannot be certified if it includes more than a de minimis number of uninjured members, it emphasized that injury, both as an element of the underlying claim and as a requirement of Article III, is an essential issue in determining whether Rule 23(b)(3)’s predominance requirement is satisfied.

Listen as this panel of preeminent class action lawyers discusses how Olean will affect certification and offers new strategies to consider. Get the history of the case, its key holdings and strategies for applying them, and recent decisions applying it.

The panel will discuss these and other critical issues:

• How will the issue of uninjured class members impact class certification after Olean?
• How will Olean change the use of expert testimony at the class certification stage?
• How will Olean’s guidance impact consumer and employment class actions?

The speakers:

Jonathan Rubin, Partner, MoginRubin LLP

James F. Bogan, III, Partner, Kilpatrick Townsend & Stockton

Jonathan F. Cohn, Partner, Sidley Austin

Bradley J. Hamburger, Partner, Gibson Dunn & Crutcher