Class certification


With recent changes in case law requiring district courts to make deeper inquiries at the class certification stage, a systematic treatment of the economics of class certification takes on greater importance. Bates White has experience evaluating the economic conditions of class certification in a number of antitrust and fraud lawsuits in the healthcare industry. We employ relevant economic theories and quantitative techniques to examine testable implications of class-wide common impact and suitability of class-wide treatment. Our professionals have testified on behalf of joint defense groups opposing class certification and have critically assessed economic interpretations of common impact made by opposing economic experts.

  • In Pennsylvania Chiropractic Association v. Blue Cross Blue Shield Association, serving as a testifying expert on ascertainability and predominance of common factors on behalf of a joint defense group of leading health insurers in connection with alleged ERISA violations associated with certain recoupment practices. Submitted written and deposition testimony.
  • In In re Pharmaceutical Industry Average Wholesale Price Litigation, served as the testifying expert on issues of common impact, feasible damage methodologies, and merits on behalf of a joint defense group of leading pharmaceutical manufacturers. Submitted written, deposition, and trial testimony concerning competitive dynamics between providers and Medicare and third-party payors and the effect of the Medicare Prescription Drug Improvement and Modernization Act of 2003. The judge denied certification to the self-administered drug class, which represented most of the commerce allegedly affected.
  • Serving as a testifying expert on behalf of a health insurance company defending allegations that it artificially depressed reimbursement rates to certain medical providers. Assessing whether the impact of the allegedly depressed reimbursement rates was common across class members.
  • Serving as a testifying expert on behalf of a medical device manufacturer in a product liability matter. Support includes providing client with an analysis of liability, damages, and issues of causation, as well as assessing whether a proposed class of health plans warrants certification.
  • Directed expert analysis for a top-tier academic expert working on behalf of a proposed class of medical residents alleging anticompetitive conduct in the determination of wages and working conditions. Performed analysis to assess issues associated with class certification and feasible damage methodologies.
  • In Swanston v. TAP Pharmaceutical Products, served as the testifying expert on issues of common impact and feasible damage methodologies on behalf of a joint defense group of leading pharmaceutical manufacturers opposing class certification. Analyzed reimbursements for both self-administered and physician-administered drugs made by patients covered by government-sponsored health insurance programs including Medicare, Medicaid, and TRICARE, patients covered by private health insurance programs, and patients without insurance. Submitted written report.