Sixth Circuit Finds a Class Can be Certified Based Solely on Inadmissible Evidence

Plaintiffs seeking to bring a class action must receive class certification. For example, Lyngaas v. Ag, 2021 WL 1115870 (6th Cir. 2021),

involve[d] two unsolicited fax advertisements received by Brian Lyngaas, D.D.S., in March 2016. Lyngaas asserts, on behalf of himself and all similarly situated class members, that Curaden AG and its U.S. subsidiary, Curaden USA, violated the Telephone Consumer Protection Act (TCPA).

So, can a court grant class certification based solely on inadmissible evidence?

In Lyngaas, 

[t]he defendants argue[d] that the district court abused its discretion by relying on inadmissible evidence to certify the class. Specifically, they argue[d] that, because Lyngaas failed to put forth admissible evidence showing which individuals actually received the fax advertisements, the district court should not have found that the “predominance” and “ascertainabilty” requirements of Rule 23(b) of the Federal Rules of Civil Procedure were satisfied. 

In finding that a court can certify a class based solely on inadmissible evidence, the Sixth Circuit ruled that

[t]his court has never required a district court to decide conclusively at the class-certification stage what evidence will ultimately be admissible at trial. Nor does any binding precedent impose such a requirement. See Hicks, 965 F.3d at 465 (“We have yet to settle this matter.”). We conclude that, on this issue of first impression, the district court is correct.

As an initial matter, the Supreme Court has helpfully shed some light on this subject. In deciding whether to certify a class, the trial court must undertake a “rigorous analysis” to ensure “that the prerequisites of Rule 23(a) have been satisfied.”...Although this analysis sometimes requires the trial court to “probe behind the pleadings,” at other times, “the issues are plain enough from the pleadings”-suggesting that admissible evidence is not always required....Either way, a party seeking to maintain a class action must “satisfy through evidentiary proof at least one of the provisions of Rule 23(b).”...

We hold, as have the Eighth and Ninth Circuits, that such “evidentiary proof” need not amount to admissible evidence, at least with respect to nonexpert evidence. See In re Zurn Pex Plumbing Prod. Liab. Litig., 644 F.3d 604, 611, 614 (8th Cir. 2011) (holding that a district court need not “decide conclusively at the class certification stage what evidence will ultimately be admissible at trial”); Sali v. Corona Reg'l Med. Ctr., 909 F.3d 996, 1004 (9th Cir. 2018) (“Inadmissibility alone is not a proper basis to reject evidence submitted in support of class certification.”).

The Eighth and Ninth Circuits have persuasively explained that the differences between Rule 23, summary judgment, and trial “warrant greater evidentiary freedom at the class certification stage.” Sali, 909 F.3d at 1005. Because class certification must occur at “an early practicable time after a person sues or is sued as a class representative,” Fed. R. Civ. P. 23(c)(1)(A), “[l]imiting class-certification-stage proof to admissible evidence risks terminating actions before a putative class may gather crucial admissible evidence...[a]nd transform[s] a preliminary stage into an evidentiary shooting match,” Sali, 909 F.3d at 1004; Zurn Pex, 644 F.3d at 613 (“As class certification decisions are generally made before the close of merits discovery, the court's analysis is necessarily prospective and subject to change, and there is bound to be some evidentiary uncertainty.”) (internal citation omitted).

-CM