Key case update: Sixth Circuit joins Eighth and Ninth Circuits in allowing inadmissible evidence at class certification
Ellis & Winters
In Lyngaas v. Ag, 992 F.3d 412 (6th Cir. 2021), the Sixth Circuit held that evidence supporting class certification need not be admissible at the class certification stage, widening the circuit split on this issue. Notably, the Sixth Circuit did not expressly address whether its ruling applied to expert testimony—the heart of the existing circuit split. (For a detailed discussion regarding the circuit split and its implications, see here). The Sixth Circuit did, however, rely on Eighth Circuit and Ninth Circuit cases that found inadmissible expert testimony proper, shedding light on its position. For practitioners, this means that that Sixth Circuit appears to have sided with the Eighth and Ninth Circuits, allowing more class actions to preliminarily proceed.
Sixth Circuit Does Not Require Authentication of Evidence at the Class Certification Stage
In Lyngaas, a dentist brought a putative class action against Swiss toothbrush manufacturer and its American subsidiary alleging that he had received an unsolicited fax advertisement for a toothbrush in violation of the Telephone Consumer Protection Act. At the summary-judgment stage of the case, the defendants opposed class certification, arguing that the dentist had failed to support his class certification motion with admissible evidence. The district court denied summary judgment on these grounds and granted class certification. The court found that the “predominance” and “ascertainability” requirements for class certification under Rule 23 of the Federal Rules of Civil Procedure were met based on summary-report logs that purportedly listed each successful recipient of the two fax advertisements by fax number. The district court further noted that it could consider the logs at the certification stage even though the dentist had yet to authenticate them.
After a bench trial, the district court subsequently held that the dentist failed to establish the total number of faxes successfully sent classwide because the summary-report logs were inadmissible “due to inadequate authentication.” For this reason, the court established a claims-administration process to afford class members the opportunity to verify their receipt of the unsolicited fax advertisements.
On appeal, the defendants argued that the district court improperly relied on inadmissible evidence in certifying the class and, thus, improperly established a claims-administration process. In particular, the defendants argued that because the dentist failed to offer admissible evidence showing which purported class members actually received the fax advertisements, the district court improperly found that the “predominance” and “ascertainabilty” requirements of Rule 23(b) of the Federal Rules of Civil Procedure were satisfied.
The Sixth Circuit disagreed. In upholding class certification, the Sixth Circuit explained 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.” While noting that this issue had previously been unsettled in the Sixth Circuit, the Sixth Circuit concluded that the district court was correct on this matter of first impression.
In so holding, the Sixth Circuit joined the Eighth and Ninth Circuits, relying on In re Zurn Pex Plumbing Prod. Liab. Litig., 644 F.3d 604, 611 (8th Cir. 2011) and Sali v. Corona Reg’l Med. Ctr., 909 F.3d 996 (9th Cir. 2018) in reaching its decision. According to those courts, “the differences between Rule 23, summary judgment, and trial ‘warrant greater evidentiary freedom at the class certification stage.’” Moreover, because Rule 23 requires class certification at an early time after a lawsuit is initiated, limiting such 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[.]’”
The Sixth Circuit further found that class certification was “inherently tentative,” unlike summary judgment or judgment after a trial. Although summary judgment and class certification occurred simultaneously in this case, the district court properly relied on the “natural progression” of litigation and discovery, noting that the dentist “indicated that he will be able to admit the evidence at trial.” The Six Circuit found that the “natural progression” approach was supported by numerous district courts in the Sixth Circuit.
Thus, according to the Sixth Circuit, the district court undertook the “rigorous analysis” required by Rule 23 and discussed by the United States Supreme Court to ensure “that the prerequisites of Rule 23(a) have been satisfied.”
Implications for Defending Class Actions in the Sixth Circuit
Notably absent from the Sixth Circuit’s decision is any reference to Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 131 S. Ct. 2541, 180 L. Ed. 2d 374 (2011), the dicta of which has caused the circuit split to fester. In Wal-Mart Stores, the district court had concluded that Daubert did not apply to expert testimony at the certification stage, and the Supreme Court response was: “We doubt that is so[.]” . While the Lyngaas decision purportedly is limited to inadmissible non-expert evidence, practitioners defending class actions in the Sixth Circuit should be aware of the implications for both expert and non-expert evidence at the class certification stage. Indeed, the Eighth Circuit and Ninth Circuit cases relied on by the court in Lyngaas analyzed expert-witness testimony at the class certification stage. Thus, until the Supreme Court definitely rules on the matter, practitioners can place the Sixth Circuit squarely on the inadmissible evidence side of the circuit split.
Author: Emily Melvin