The Supreme Court granted certiorari in Comcast Corp. v. Behrend, No. 11-864 (docket) to decide the following question, as reformulated by the Court: “[w]hether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.” (For more background on this case, see my June 26, 2012 blog post.)  The Court heard oral argument in this case earlier this week, on November 5th.  Here are a few highlights from the transcript

  • Justices Kagan and Ginsburg questioned whether, with respect to the question presented as reformulated, Comcast had waived its rights by not filing a Daubert motion below and expressly challenging the admissibility of the expert report.  (Transcript, at 17-18.)  Justice Sotomayor suggested that, setting aside Daubert, an expert report would have to be probative and persuasive in order to form the basis for certification of a class.  (Id. at 22, 26-27.)  Justices Alito and Scalia then suggested that there may be no difference between determining probative value and a Daubert determination, and Justice Kagan also suggested that “it’s always true, isn’t it, that evidence that is inadequately probative is inadmissible?” (Id. at 27-30.)  Chief Justice Roberts suggested that the Court could simply answer the question presented and then remand the case for resolution of the waiver issue.  (Id. at 30-31.)  Justice Sotomayor later pointed out that Daubert may be unnecessary where evidence is not probative or reliable, and Justice Scalia appeared to agree with that.  (Id. at 48, 50.)  This suggests that the Court might not be concerned with the waiver issue. 
  • Justice Kagan stated that she was struggling with whether there was a question of law in dispute between the parties, given the plaintiff’s apparent agreement that Daubert applies at class certification (when properly invoked), and that the plaintiff has the burden of proving by a preponderance of the evidence that damages can be measured on a class-wide basis with common proof.  Plaintiff’s counsel indicated that there was agreement on the legal standard.  (Id. at 38-39.)  The absence of a disagreement on the legal standard might suggest the possibility that the Court could find that certiorari was improvidently granted.  However, in a colloquy with Justice Sotomayor and Chief Justice Roberts, Plaintiff’s counsel suggested that the standard should be whether it is more likely than not that the evidence can be used at trial.  (Id. at 44-45.)  This appears to suggest that there is a disagreement between the parties – it appears that Comcast’s position is that the ultimate admissibility (or probity) of the evidence must be decided at the class certification stage, not merely whether it is more likely than not that the evidence can be used.  That might put the question presented in greater focus. 
  • Justice Kennedy suggested that perhaps the Daubert standard should apply differently where the judge is the finder of fact (as is the case at class certification, and would be at trial in Behrend). (Id. at 41.)


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Photo of Wystan Ackerman Wystan Ackerman

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you…

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you have something to say.  For those looking for my detailed law firm bio, click here.  If you want a more light-hearted and hopefully more interesting summary, read on:

People often ask about my unusual first name, Wystan.  It’s pronounced WISS-ten.  It’s not Winston.  There is no “n” in the middle.  It comes from my father’s favorite poet, W.H. (Wystan Hugh) Auden.  I’ve grown to like the fact that because my name is unusual people tend to remember it better, even if they don’t pronounce it right (and there is no need for anyone to use my last name because I’m always the only Wystan).

I grew up in Deep River, Connecticut, a small town on the west side of the Connecticut River in the south central part of the state.  I’ve always had strong interests in history, politics and baseball.  My heroes growing up were Abraham Lincoln and Wade Boggs (at that time the third baseman for the Boston Red Sox).  I think it was my early fascination with Lincoln that drove me to practice law.  I went to high school at The Williams School in New London, Connecticut, where I edited the school newspaper, played baseball, and was primarily responsible for the installation of a flag pole near the school entrance (it seemed like every other school had one but until my class raised the money and bought one at my urging, Williams had no flag pole).  As a high school senior, my interest in history and politics led me to score high enough on a test of those subjects to be chosen as one of Connecticut’s two delegates to the U.S. Senate Youth Program, which further solidified my interest in law and government.  One of my mentors at Williams was of the view that there were far too many lawyers and I should find something more useful to do, but if I really had to be a lawyer there was always room for one more.  I eventually decided to be that “one more.”  I went on to Bowdoin College, where I wrote for the Bowdoin Orient and majored in government, but took a lot of math classes because I found college math interesting and challenging.  I then went to Columbia Law School, where I was lucky enough to be selected as one of the minions who spent their time fastidiously cite-checking and Blue booking hundred-plus-page articles in the Columbia Law Review.  I also interned in the chambers of then-Judge Sonia Sotomayor when she was a relatively new judge on the Second Circuit, my only connection to someone who now has one-ninth of the last word on what constitutes the law of our land.  I graduated from Columbia in 2001, then worked at Skadden Arps in Boston before returning to Connecticut and joining Robinson+Cole, one of the largest Connecticut-based law firms.  At the end of 2008, I was elected a partner at Robinson+Cole.

I’ve worked on class actions since the start of my career at Skadden.  Being in the insurance capital of Hartford, we have a national insurance litigation practice and I was fortunate to have the opportunity to work on some prominent class actions arising from the 2004 hurricanes in Florida and later Hurricane Katrina, including cases involving the applicability of the flood exclusion, statutes known as valued policy laws, and various other issues.  My interest and experience in class actions gradually led me to focus on that area.

In Connecticut courts I’ve defended various kinds of class actions that go beyond insurance, including cases involving products liability, securities, financial services and consumer contracts.

My insurance class action practice usually takes me outside of Connecticut.  I’ve had the pleasure of working on cases in various federal and state courts and collaborating with great lawyers across the country.  While class actions are an increasingly large part of my practice, I don’t do exclusively class action work.  The rest of my practice involves litigating insurance coverage cases, often at the appellate level.  That also frequently takes me outside of Connecticut.  A highlight of my career thus far was working on Standard Fire Ins. Co. v. Knowles, the U.S. Supreme Court’s first Class Action Fairness Act case.  I was Counsel of Record for Standard Fire on the cert petition, and had the pleasure of working with Ted Boutrous on the merits briefing and oral argument.

I started this blog because writing is one of my favorite things to do and I enjoy following developments in class action law, writing about them and engaging in discussion with others who have an in interest in this area.  It’s a welcome break from day-to-day practice, keeps me current, broadens my network and results in some new business.

When I’m not at my desk or flying around the country trying to save insurance companies from the plaintiffs’ bar, or attending a conference on class actions or insurance litigation (for more on those, see the Seminars/Programs page of this blog), I often can be found playing or reading with my young daughter, helping my wife with her real estate and mortgage businesses, reading a book about history or politics, or watching the Boston Red Sox (I managed to find bleacher seats for Game 2 of the 2004 World Series when Curt Schilling pitched with the bloody sock).  When the weather is good I also love to take the ferry to Block Island, Rhode Island and ride a bike or walk the trails there. If you go, I highly recommend the Clay Head Trail.