July 17, 2018 Articles

LIBOR VII’s Implications for Expert Evidence at the Class-Certification Stage

The case confirms the obsolescence of earlier case law propounding the application of a less stringent burden to plaintiffs’ expert evidence at class certification.

By Antonia Apps, Jed Schwartz, David Marcou, and Rebecca Hall

In the wake of the Supreme Court’s rulings in Wal-Mart Stores, Inc. v. Dukes and Comcast Corp. v. Behrend, district courts were charged with applying enhanced scrutiny to expert evidence presented at the class-certification stage. Prior to these rulings, the Second Circuit had already tasked district courts in its circuit with the burden of applying a heightened level of scrutiny to such evidence. Nevertheless, in practice, this standard was applied unevenly. Whatever the previous standard for expert evidence at the class-certification stage, Judge Buchwald’s recent opinion in In re LIBOR–Based Financial Instruments Antitrust Litigation (LIBOR VII), No. 11 Civ. 5450 (NRB), 2018 WL 1229761 (S.D.N.Y. Feb. 28, 2018), decisively frames the inquiry going forward. Under that ruling, courts in the Southern District of New York must closely analyze expert evidence proffered in support of a motion for class certification. Defendants are advised, where appropriate, to raise Daubert challenges in connection with class certification and to seek resolution of “battle of the expert” disputes prior to class certification.

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