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Yeah, we’re way down the routing list.

We just saw the article by James Muehlberger and Nicholas Mizell in the December 4, 2006, issue of The National Law Journal. But we liked what they said, so we’ll post about it here.

The authors note, as all practitioners in this field know, that the 2003 amendments to Rule 23 eliminated the provision permitting “conditional certification” of a class. According to the new Advisory Committee Notes, “A court that is not satisfied that the requirements of Rule 23 have been met should refuse certification until they have been met.”

The interesting part of the article, however, is where the authors suggest that amended Rule 23 should permit closer analysis of expert scientific testimony offered in support of class certification. The elimination of conditional certification “lends weight to the argument” that scientific evidence submitted in support of class certification “should be subject to a rigorous Daubert analysis, just as it would be at any other stage in the proceeding.”

Couple that thought with the Second Circuit’s recent pronouncement in the IPO litigation that courts can analyze merits-based issues that overlap class certification issues. It’s looking more and more as though classes should only be certified if sound evidence, not mere junk science, supports that result. That is, of course, as it should be, since the stakes on class certification are so high.