Surveys and Certification in Consumer-Finance Class Action: Supporting, Attacking Predominance and Superiority

Course Details
- smart_display Format
On-Demand
- signal_cellular_alt Difficulty Level
- work Practice Area
Class Action and Other Litigation
- event Date
Thursday, August 26, 2021
- schedule Time
1:00 p.m. ET./10:00 a.m. PT
- timer Program Length
90 minutes
-
This 90-minute webinar is eligible in most states for 1.5 CLE credits.
This CLE course will review the uses and limits of survey responses to prove liability (or damages) on a classwide basis focusing on consumer finance class actions, but offer insights and examples from and applicable to other types of class actions. The program will discuss how to assess if a survey asks the right questions-and only the right ones-to the right respondents under the relevant conditions, and offer best strategies for those seeking to introduce the survey data and those seeking to exclude it.
Faculty

Mr. Nylen has more than 29 years of experience in litigating complex commercial cases across many industries. He handles matter over a wide range of areas, including intellectual property disputes, entertainment litigation, anti-counterfeiting enforcement for luxury brands, food and beverage law, class action defense, and general business litigation. Mr. Nylen's clients include the owners of significant intellectual properties, including copyrights, trademarks, and domain names, as well as businesses involved in sophisticated commercial litigation.

Ms. Simonetti focuses on the defense of complex litigation, with broad experience representing clients in the financial services industry, including regional and national banks, credit card issuers, mortgage bankers, various types of loan servicers, consumer finance companies and third-party collectors. She serves as trial and appellate counsel in courts across the country and routinely counsels financial services clients on compliance with state and federal laws and regulations.

As a litigation and management consultant, Mr. Boedeker focuses on the application of economic, statistical, and financial models to areas such as solutions to business issues, economic impact studies, and complex litigation cases. Over the course of his 30-year career, Mr. Boedeker has provided economic, financial, and statistical consulting and expert services to clients across a wide range of industries. He has issued hundreds of expert reports and given deposition and trial testimony in state and federal courts, arbitrations, and regulatory hearings over 140 times. Mr. Boedeker’s extensive work in the healthcare, pharmaceuticals, and life sciences space, includes providing statistical and economic consulting to clients such as providers, payors, and federal, state, and local government agencies. He has experience in assisting healthcare organizations facing disputes where complex economic issues must be assessed and where complex statistical methods are necessary to answer questions of liability, over/underpayments, and damages. Mr. Boedeker has also helped clients negotiate and present statistical methodology to government agencies such as the Office of Inspector General (OIG), Centers for Medicare & Medicaid Services (CMS), and Department of Justice (DOJ) when assessing the appropriateness of claims submission and payment practices based on statistical samples. He also has coordinated statistical sampling methodology on numerous healthcare audits.
Description
A familiar hurdle to achieving class certification is the requirement that a plaintiff must prove liability and damages on a classwide basis under Federal Rule 23(b)(3) as well as that a class action is the superior procedure. Courts will compare the issues subject to common proof with those subject to individualized proof to determine which predominates and whether class action is the best choice for resolving them. Above all courts are cautious about admitting survey data.
When the issues are a consumer’s buying decision, understanding of products, and comprehension of disclosures, a carefully designed survey may be invaluable to show liability or provide evidence on key issues. Survey results even on matters indirectly related to the core issues may also be useful if they provide insight into the ultimate issue. But surveys can be prone to bias given the wide array of designs, dizzying selection of sample selection and size, phrasing of questions, survey conditions. Not only is the choice of survey important but also the choice of expert to design them and explain them to a court.
Surveys can be a sword or shield but they must be reliable. They must focus on the relevant inquiry at the relevant state of decision making during the relevant time frame. Counsel need to identify the most outcome determinative facts and focus their surveys there. These techniques are often complicated and attorneys must be able to explain methodology in a coherent way.
Listen as this experienced panel of experts and class action counsel review best practices and strategies for using surveys in consumer class actions and their limits.
Outline
- Use of surveys on issue of predominance
- Use of surveys on issue of superiority
- Survey reliability and admissibility
- Overview of survey types, methods, and standards
- Types of experts needed to conduct surveys
- Discoverability of survey results
Benefits
The panel will review these and other critical issues:
- How to determine if existing survey research is useful
- What makes good survey research in litigation?
- How to evaluate prospective survey research experts
- What are best strategies when deposing or cross-examining survey experts proffered by the opposing party?
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