Neal Marder Talks Class Actions with Metro Corp Counsel

Akin Gump litigation partner Neal Marder was interviewed by Metropolitan Corporate Counsel, the result being the article “Master a New Specialty: Class Actions: Leading litigator offers lessons for managing — and defeating — class actions.”

In it, Marder discusses his own nearly two-decade-long  class action practice as well as areas of interest in that field currently. Some of the topics covered include:

  • The impact of Tyson on class action plaintiffs and defenders: “[T]he Tyson decision is not a complete victory for either the plaintiffs’ or the defense bar In Tyson, the Supreme Court held that the plaintiffs in that case could rely on statistical evidence to prove their claims on a class-wide basis, and this satisfied the predominance requirement. In the coming years, plaintiffs will surely attempt to push the boundaries by using statistical evidence in other cases to avoid creating an individualized issue that would prevent certification. But the scope of Tyson was fairly narrow. The Court emphasized that it will be a case-specific inquiry as to whether plaintiffs can rely on statistical evidence. It also remains to be seen whether and to what extent plaintiffs will have success under a Tyson theory outside of the Fair Labor Standards Act context.”
  • The key to early victories in defeating class certification: “I would say the key is being creative and utilizing every procedural technique available to attack the merits of the claims, as well as the class allegations, by challenging the court to comply with its obligation to undertake a ‘rigorous analysis’ of the class claims and Rule 23 requirements.”
  • The issue of ascertainability in class certification: “Several courts have held class plaintiffs to a high standard in demonstrating that the proposed class can be readily ascertained before granting class certification. The majority of circuits now apply a ‘heightened’ standard that requires that the class is ‘defined with reference to objective criteria’ and that there is a ‘reliable and administratively feasible mechanism for determining whether putative class members fall within the class definition.’ However, there is a split in authority regarding the ascertainability requirement. Some circuits have adopted a less rigorous ascertainability analysis. On Monday, the Ninth Circuit heard oral argument in two relevant cases – In re ConAgra Food and Brazil v. Dole Packaged Foods, LLC – so the appropriate standard in this circuit will hopefully be clarified soon.”

To read the full interview, please click here.