Presenting a live 90 ‐ minute webinar with interactive Q&A Statistics in Class Action Litigation: Admissibility, Expert Witnesses y, p and Impact of Comcast v. Behrend Leveraging Statistical Evidence and Expert Testimony to Obtain or Defeat Class Certification WEDNES DAY, JUNE 19, 2013 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific T d Today’s faculty features: ’ f l f Paul G. Karlsgodt, Partner, Baker Hostetler , Denver Rick Preston & Justin Hopson, Hitachi Consulting , Denver Brian A. Troyer, Partner, Thompson Hine , Cleveland Brian A. Troyer, Partner, Thompson Hine , Cleveland The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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Statistics in Class Action Litigation: Statistics in Class Action Litigation: Admissibility, Expert Witness and Impact of Comcast Corp. v. Behrend - Agenda Behrend Agenda Part I – Introduction (~15 min.) Part II – A legal framework for evaluating statistical evidence in class certification after Comcast (~40 min.) Part III – Practical tips on presenting and challenging statistics (~20 min.) Question and Answer (~15 min.) 5
Part I – Introduction 6
Introduction to Statistics “Statistics is the science and art of describing data and drawing inferences from them”* Statistics Statistics Descriptive Inferential Statistics Statistics Describes relationships, Makes inferences, correlations, events generalizations, estimates, predictions *(Finkelstein and Levin, p. 1) 7
Terminology of “Statistics”? Descriptive statistics Used to explain an event or course of events. Inferential Statistics From the data showing Y, you can infer that X is true. Probability How likely is something to be true? H lik l i thi t b t ? Regression analysis Discussed in Wal-Mart Stores, Inc. v. Dukes and Comcast Examines the relationship between variables. Examines the relationship between variables. Surveys Of X population, Y are likely to respond this way. Econometrics E.g., “but for the misrepresentation, the price would have been X dollars lower” Compilations of Data Not “statistics” per se but may raise some of the same issues Not statistics per se, but may raise some of the same issues.
Rough Justice & Big Data Over the past decade, as storage and p g computing power have increased exponentially, it has become increasingly tempting to use statistical sampling as a proxy for the actual adjudication of facts in class or mass actions. j “Big Data: What It Is and Why You Should Care” IDC (June 2011) Hard Disc Solid State Disc Storage Price/GB Storage Price/GB Sources of Data Growth • Email, collaboration tools, and mobile devices • • Machine and sensor-generated messages Machine and sensor-generated messages • Digitization of business records and personal content • Instrument devices • Governance, privacy, and regulatory compliance requirements 9
How Are Statistics Used to Support Class Certification? Class Certification? The existence of a common practice p A relationship between the defendant’s conduct and some injury to class members The total damages or other impact caused by a The total damages or other impact caused by a practice The percentage of people impacted by a g y practice. Given a set of characteristics, the probability that a person was impacted by a practice a person was impacted by a practice. Common reliance Truly common reliance, e.g. “fraud on the market” Reliance by “most” of the class R li b “ t” f th l
Why Do Statistics Matter In Class Actions? Class Actions? Wal-Mart Stores, Inc. v. Dukes created a more demanding standard for class certification Hannaford showed courts won’t speculate on the ability to provide necessary data post-certification Comcast sets higher level of scrutiny (logical fallacies, causal link between injury & damage) li k b t i j & d ) The lower courts are starting to fill in the gaps left by the Dukes Court’s analysis—see, for example, Duran v. U.S. Bank National Association Association Both sides are likely to attempt to create a more well-developed factual record of the people, process, and technology Statistics often provide an appealing way to illustrate how Statistics often provide an appealing way to illustrate how aggregate or common method of injury is possible, and can create diverse individual outcomes Data is more available and accessible than ever before 11
Part II – Case Law on the Use of Statistics in Class Certification 12
Dukes in Review Dukes in Review Did not change the landscape regarding statistics and class certification but confirmed the necessity of rigorous scrutiny. y g y The Court examined the statistical analyses and found inferential gaps between the policy that statistics were claimed to show and what they actually showed. Illustrated and confirmed inherent limitations of statistical and Illustrated and confirmed inherent limitations of statistical and aggregate proof. Confirmed that, validity of statistics aside, conceptual gaps are critical. Even if statistics showed the claimed pattern, that pattern would not establish commonality. Whether any individual decision was discriminatory would still require individual proof require individual proof. Condemned use of “trial by formula.” Gave a strong hint in favor of Daubert being required at class certification, but did not answer the question directly. , q y 13
Comcast Corp. v. Behrend , 133 S Ct 24 (2012) 133 S. Ct. 24 (2012). Daubert question left unanswered again. Issue decided was not the issue initially certified for review. ssue dec ded as ot t e ssue t a y ce t ed o e e Question presented was whether court could grant class certification without deciding whether expert testimony was admissible . Question decided was whether “certification was improper because plaintiffs failed to establish that damages could be measured on a classwide basis” through expert testimony they presented. Basic Facts Plaintiffs alleged that Comcast was engaged in “Clustering,” or the concentration of operations in a geographic region to increase market share. h Four theories of harm – clustering: Made it profitable to withhold local sports programing from competitors Reduced competition from “overbuilders” The only common impact accepted by the district court district court. Reduced the level of “benchmark” competition Increased Comcast’s bargaining power Expert performed a regression analysis that purported to show the overall price impact of clustering. p p g 14
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