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Happy New Year on the Class Action Front

By James M. Beck and Mark Herrmann

We posted earlier when the Second Circuit declared that class certification merits review was "in." Well, we're pleased to say that the Third Circuit just joined the party. In In re Hydrogen Peroxide Litigation, slip copy here, decided yesterday, the court "clarified" three areas of federal class action practice:

First, the decision to certify a class calls for findings by the court, not merely a ?threshold showing? by a party, that each requirement of Rule 23 is met.... Second, the court must resolve all factual or legal disputes relevant to class certification, even if they overlap with the merits ? including disputes touching on elements of the cause of action. Third, the court?s obligation to consider all relevant evidence and arguments extends to expert testimony, whether offered by a party seeking class certification or by a party opposing it.

Slip op. at 5. Class certification was reversed and remanded.

Enjoy.

Full post as published by Drug and Device Law on December 31, 2008 (boomark / email).