A recent opinion from a California federal court, Mier v. CVS Pharmacy, Inc. et al., No. 8:20-cv-01979-DOC-ADS, slip op. (C.D. Cal. May 9, 2022), touches on an aspect of econometric modeling that class action defense counsel should understand, particularly in consumer fraud cases under California’s Unfair Competition Law (UCL) and similar laws with restitution as a remedy. This key principle is that consumer value is subjective and individual, as represented by the downward slope of a demand curve. That shape poses what normally should be an insurmountable problem for UCL class actions. It represents the range of values consumers place on a product. As price rises, quantity falls, because each incrementally higher price exceeds the willingness to pay of one or more additional consumers. Courts are just beginning to recognize this, although savvy defense counsel have understood and advocated it for a long time.
In a refreshingly plain-spoken opinion issued Aug. 6, a three-judge panel of the Third Circuit Court of Appeals criticized a multimillion-dollar class action settlement in litigation over Google’s unauthorized use of internet tracking “cookies,” remanding to the District Court for more detailed findings of fact. 
In 2016, the Supreme Court issued its decision in Spokeo Inc. v. Robins, holding that even when Congress has granted parties a statutory right, a procedural violation of that right will not by itself satisfy the “concrete harm” requirement for Article III standing. The Court explained that while harm must be “concrete,” it need not be “tangible.” With little guidance on what this distinction actually means, the Court sent the case back to the Ninth Circuit, then denied a petition for writ of certiorari when the petitioners sought clarification on what constitutes a concrete, “intangible” harm.
On April 24, 2019, the U.S. Supreme Court ruled that an ambiguous arbitration agreement does not provide a sufficient basis to conclude that parties agreed to class arbitration.
The new year began with dramatic growth in vehicle total loss class actions over payment of sales tax and title transfer and registration fees, interpretations of the filed rate doctrine, and further activity in labor depreciation class actions.
Are absent members of an uncertified class or Fair Labor Standards Act (FLSA) collective action “parties” and thus “represented” by plaintiff’s counsel? If so, is defense counsel prohibited from speaking with absent class members? At first glance, the answer would appear to be no, for two reasons. First, “a nonnamed class member is [not] a party to the class-action litigation before the class is certified.” Standard Fire Ins. Co. v. Knowles, 568 U.S. 588, 593 (2013). And “[u]nder the FLSA, employees become parties to a collective action only by filing written consent” with the court after receiving court-approved notice. Genesis HealthCare Corp. v. Symczyk, 569 U.S. 66, 75 (2013). Second, district courts cannot restrict parties or counsel in an alleged class action from communicating with putative class members unless the speech restriction is “justified,” generally because of abuse or other misconduct. See Gulf Oil Co. v. Bernard, 452 U.S. 89, 101, 104 (1981). 
Expert testimony plays a critical role in nearly all putative class actions, including at the class certification stage where parties rely on expert evidence to address the requirements of Federal Rule of Civil Procedure 23. The Supreme Court has repeatedly held that trial courts must look beyond the pleadings and conduct a searching inquiry to resolve factual disputes about Rule 23’s requirements. But the Supreme Court has not explicitly held whether that searching inquiry requires expert testimony to satisfy the Daubert requirements before being considered in deciding a motion to certify. In Wal-Mart Stores, Inc. v. Dukes, the Supreme Court noted that “the District Court concluded that Daubert did not apply to expert testimony at the certification stage of class-action proceedings.” 564 U.S. 338, 354 (2011). The Supreme Court expressed skepticism about that holding but did not reject it outright: “We doubt that is so.” Id. As we wrote 
