Beyond Predominance: Alternative Arguments Against Class Certification

Mr. Schwartz is a litigation partner in the Washington, D.C., office of Kirkland & Ellis LLP. He represents clients in purported class actions, multidistrict litigation and mass tort proceedings in federal and state courts. Mr. Schwartz has successfully represented an array of product manufacturers at both the trial and appellate levels. His briefings have resulted in the dismissal of multiple product liability and consumer fraud actions on the pleadings, at summary judgment and at the class certification stage. Mr. Schwartz also has successfully defended pharmaceutical companies in litigation commenced by state attorneys general alleging violations of consumer protection laws. In addition to representing companies in proceedings involving pharmaceutical and consumer products, he has represented the United States Chamber Institute for Legal Reform and the Product Liability Advisory Council, drafting amicus briefs on their behalf in cases affecting American businesses and product manufacturers. In September 2021, Mr. Schwartz provided expert testimony on behalf of the United States Chamber Institute for Legal Reform before the Ohio Senate Judiciary Committee regarding third-party litigation funding. He also has authored articles and white papers pertaining to various litigation reform measures, including proposals related to multidistrict litigation, class actions and third-party litigation funding. Mr. Schwartz has written extensively on developments in the law governing personal jurisdiction and other aspects of civil procedure.

Ms. Rose is a litigation partner in the Washington, D.C., office of Kirkland & Ellis LLP. She represents a variety of companies in the defense of product liability and consumer class action claims involving a number of pharmaceutical, personal care and other consumer products. Ms. Rose has experience in the day-to-day management of large-scale product liability litigation, encompassing cases pending in state courts across the country and actions coordinated in federal multidistrict litigation proceedings. She also develops and implements strategies to defeat product liability litigation on the merits, including by working with experts in a variety of specialties to challenge plaintiffs’ scientific and economic theories. In particular, Ms. Rose was significantly involved in developing expert evidence, and challenging plaintiffs’ experts’ opinions at the Daubert stage, in connection with a prior firm litigation alleging that baby powder manufactured by Johnson & Johnson caused personal injuries to consumers. She also played a significant role in drafting dispositive and trial motions in connection with a number of baby powder cases pending in state and federal court. Ms. Rose also has substantial experience in successfully defending against challenges to her clients’ claims of privilege and against allegations of spoliation of evidence in connection with product liability litigation. She advises corporate clients on best practices to protect the confidentiality of their privileged communications and to avoid costly discovery disputes regarding data retention.