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

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.