December 1 marks an important and long-awaited change to Federal Rule of Evidence 702. The Rule, pertaining to the testimony of expert witnesses, has not received a substantive update since 2000, when it was amended in the wake of the Daubert decision. Now, more than 20 years later—and after years of study—the Rule has been amended to make two issues clear: (1) that the proponent of an expert’s testimony must establish the admissibility of that testimony by a preponderance of the evidence; and (2) that an expert’s opinion must reflect a reliable application of his or her methodology to the case. These changes reinforce the key gatekeeping role that courts play in ensuring that only helpful, reliable expert testimony is heard by the factfinder.
Marc Capuano is a stand-up litigator in the Washington, DC office, where he represents clients in all phases of complex class actions and commercial litigation, including dispositive motions, discovery, and trial.
Marc works with national and international clients across various industries to help them successfully resolve their most difficult litigation challenges in state and federal court. Among others, Marc has counseled clients in the life sciences, pharmaceutical, technology, and automotive industries. Marc has expertise in all stages of litigation, including drafting dispositive motions, taking and defending depositions, and in-court argument. A member of multiple trial teams in both state and federal court, Marc understands how to position and prepare cases for successful resolution at trial.
Marc’s active pro bono practice includes first-chairing a Maryland first degree murder trial during which the team secured their client’s acquittal and successful litigation to defend the rights of swing-state voters following the 2020 Presidential election. Marc has honed his oral advocacy through his pro bono work, including by arguing Daubert and other substantive motions, giving the opening statement at trial, and conducting trial cross and direct examinations.
Prior to joining Covington, Marc served as a law clerk to U.S. District Judge Robert E. Payne of the Eastern District of Virginia (Richmond). A native Rhode Islander, before attending law school, Marc worked as Correspondence Director and Legislative Correspondent for U.S. Senator Jack Reed (RI) in Washington.
We are seeing a growing number of class actions alleging consumer harms from corporate carbon offset policies. On October 13, a California federal court threw out such a case (albeit with leave to amend) against e-commerce site Etsy.
The lawsuit, Blackburn v. Etsy, Inc., No. 2:23-cv-05711 (C.D. Cal. 2023), stemmed from a number of carbon offset promises Etsy has made since 2019—that the company engages in “100% offsetting [of] all carbon emissions from shipping[,]” that it was “the first major online shopping destination to offset 100% of carbon emissions generated by shipping[,]” and that its “goal [is] to run a carbon neutral business[.]” Dkt. No. 20 at 1. Plaintiffs alleged that the carbon offset promises were false “due to endemic methodological errors and fraudulent accounting on behalf of offset vendors.” Id. Plaintiffs claimed that Etsy’s false promises caused them harm because they paid more for products on the site than they otherwise would have under the mistaken belief that Etsy’s shipments were carbon neutral. …
Courts and litigants continue to grapple with the new frontier of artificial intelligence (“AI”). One recent case in California demonstrates a new wrinkle in this evolving landscape—the use of AI to aggregate class claims.
Because class settlements bind absent class members who do not object or opt out, Rule 23 requires courts to carefully review and approve them as “fair, reasonable, and adequate.” An important part of this inquiry is making sure class members are given adequate notice of the terms of the proposed settlement and their rights. When class members are required to submit claims to access settlement benefits, parties often turn to professional claims administration companies to assist in providing notice and facilitating the claims process. Under Rule 23, courts closely monitor the information that flows from class counsel and claims administrators to putative class members to make sure it complies with due process.…