“The District Court’s order would allow virtually any class to be certified, even if the plaintiffs’ claims bear no resemblance to each other and the experts’ methods are flawed.”
—John Masslon, WLF Senior Litigation Counsel
Click here for WLF’s brief.
WASHINGTON, DC— Washington Legal Foundation (WLF) yesterday urged the U.S. Court of Appeals for the Ninth Circuit to hear an appeal from a class certification order in an important fraud case. In an amicus brief, WLF argues that the U.S. District Court for the Northern District of California’s decision contravenes both the Federal Rules of Civil Procedure and the Federal Rules of Evidence.
The case arises from JUUL’s alleged deceptive marketing of its vaping products. Plaintiffs contend that JUUL’s misrepresenting the safety of its products caused them to start vaping. As dozens of these cases were filed around the country, the Judicial Panel on Multidistrict Litigation created a multi-district litigation in the Northern District of California. Plaintiffs eventually moved for class certification, and the District Court granted that motion. JUUL has now asked the Ninth Circuit to review the class-certification order.
In its brief supporting JUUL, WLF argues that the plaintiffs’ nicotine journey and exposure to JUUL advertisements are material to the class-certification inquiry. For a class to be certified, common issues of law and fact must predominate over individualized questions. Yet whether an individual transitioned from cigarettes to vaping or began vaping with no previous nicotine use are critical to plaintiffs’ claims. These individualized inquiries will necessarily dominate any merits trial.
WLF’s brief also explains why the District Court erred by not applying the full Rule 702 analysis for plaintiffs’ experts’ testimony. As five other courts of appeals recognize, recent Supreme Court precedent and the text of Rule 23 require that a district court make admissibility decisions before certifying a class. But the District Court held that cross-examination of the expert witnesses suffices to protect JUUL’s interest. As this was legal error, the Ninth Circuit should hear this appeal.
Celebrating its 45th year, WLF is America’s premier public-interest law firm and policy center advocating for free-market principles, limited government, individual liberty, and the rule of law.