On October 26, 2011, Defendants-Appellants filed a Rule 23(f) Petition seeking immediate leave to appeal the District Court's October 13, 2011 Order granting in part Plaintiff-Appellee's motion for class certification. The question presented in the Rule 23(f) Petition was this: "Whether the Court should allow Petitioners Permission to Appeal pursuant to Rule 23(f) where the District Court: (1) failed to conduct any type of rigorous analysis required under Rule 23; (2) certified claims that Plaintiffs did not seek to certify; (3) certified claims against Defendants against whom Plaintiffs did not seek to certify claims; and (4) failed to address the expert opinions of Defendants' expert witnesses."
Further, the "important and unsettled" questions highlighted by Defendants-Appellants are these: "(1) whether a district court can certify claims against defendants that the plaintiffs have not pleaded class claims against; and (2) the nature and extent of a court's duty to examine expert opinions in making a class certification decision."
On the first unsettled question, Appellants point out the fact that Plaintiffs did not seek to certify claims for temporary nuisance, products liability, civil conspiracy, and punitive damages, but that the District Court certified these claims anyway.
On the second unsettled question, Appellants note that the District Court accepted Plaintiffs' expert opinions as true, and ignored the criticisms and competing opinions presented by Defendants' expert. Appellants advocate the Sixth Circuit's adoption of the standard set forth in In re: Hydrogen Peroxide Antitrust Litig., which requires that an "expert opinion with respect to class certification, like any matter relevant to a Rule 23 requirement, calls for a rigorous analysis" and "should not be uncritically accepted." 522 F.3d 305, 323 (3d Cir. 2008).
