Whether federal district courts must apply the full rigor of Federal Rule of Evidence 702 at the class certification stage, or may conduct a more limited evidentiary analysis

No question identified. : APPLICATION FOR EXTENSION OF TIME TO FILE A PETITION FOR A WRIT OF CERTIORARI To: Justice Elena Kagan, Circuit Justice for the Ninth Circuit: Under this Court’s Rules 13.5 and 22, Applicant Johnson & Johnson Consumer Inc. (“JJCI”)! respectfully requests an extension of 45 days to file a petition for a writ of certiorari in this case. The petition will seek review of the U.S. Court of Appeals for the Ninth Circuit’s decision in Noohi v. Johnson & Johnson Consumer Inc., 146 F.4th 854 (9th Cir. 2025), in which the Ninth Circuit affirmed the district court’s grant of class certification under Federal Rule of Civil Procedure 23(b)(3). A copy of the Ninth Circuit’s decision is attached at App.127. A copy of the Ninth Circuit’s September 3, 2025 order denying rehearing en banc is attached at App.28. In support of this application, Applicant states: 1. The Ninth Circuit issued its decision in this case on July 25, 2025. App.1. On September 3, 2025, the Ninth Circuit denied rehearing en banc. A petition for a writ of certiorari would be due December 2, 2025. SeeS. Ct. R. 13.1, 13.3. Granting this 45-day extension would make the petition due on January 16, 2026. The jurisdiction of this Court would be based on 28 U.S.C. § 1254(1). 2. This case is a serious candidate for review. In the decision below, the Ninth Circuit held that district courts are authorized to apply a “limited” Rule 702 analysis at the class-certification stage, as opposed to the “full-blown” 1 JJCI’s interest in this lawsuit has transferred to Kenvue Brands LLC, a Delaware limited liability company. A motion or stipulation to substitute Kenvue Brands LLC as the proper party is forthcoming. analysis this Federal Rule of Evidence prescribes. App.11 (quotations omitted). The decision thus implicates an acknowledged circuit split over whether and to what extent the Federal Rules of Evidence—and in particular Rule 702—apply at class certification. See generally 3 Newberg & Rubenstein on Class Actions § 7:24 (6th ed. 2025); see also, e.g., Allen v. Ollie’s Bargain Outlet, Inc., 37 F.4th 890, 906-07 (3d Cir. 2022) (Porter, J., concurring). This Court granted certiorari to answer a similar question in Comcast Corp. v. Behrend, 567 U.S. 933 (2012)—namely, “Whether a district court may certify a class action without resolving whether the plaintiff has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.” Jd. But the Court ultimately resolved Comcast on other grounds. Comcast Corp. v. Behrend, 569 U.S. 27, 32 n.4 (2013). Since Comcast, the split has deepened, compare In re Nissan N. Am., Inc. Litig., 122 F.4th 239, 253-54 (6th Cir. 2024); Prantil v. Arkema Inc., 986 F.3d 570, 575-76 (5th Cir. 2021); In re Blood Reagents Antitrust Litig., 783 F.3d 183, 187-88 (8d Cir. 2015), with App.10-13. 2. The Ninth Circuit’s holding that district courts are not required to conduct a “full” Rule 702 analysis at the class-certification stage is wrong. According to the Ninth Circuit, the rigor with which Rule 702 applies at the classcertification stage depends on how much work the expert has put in. If the expert’s analysis is complete, district courts may apply Rule 702 in “fullf].” App.11 (quotations omitted). But where an expert’s model is “not yet fully developed,” district courts apply a “limited” Rule 702 inquiry that asks only whether the expert’s model “is useful in evaluating whether class certification requirements have been met.” App.7, 11 (quotations omitted). That regime cannot be squared with the Federal Rules of Evidence or Civil Procedure. The Federal Rules of Evidence “apply” in all “civil cases and proceedings.” Fed. R. Evid. 1101(b). Although Rule 1101(d) carves out several exceptions to this rule of general applicability, there is no exception for class actions or class-certification proceedings. Nor do the Rules suggest that courts have latitude to relax the Ru