Must Class Counsel’s “Proof” that Rule 23 Is Met Satisfy the Rules of Evidence?

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Must Class Counsel’s “Proof” that Rule 23 Is Met Satisfy the Rules of Evidence?

All class-action practitioners understand the importance of a court’s decision to certify a class—the pivotal point at which a putative class action can transform into a reality, promising vast settlement pressure on the defendant, even over potentially meritless claims. A cert petition filed with the Supreme Court on September 14 in Taylor Farms Pacific v. Pena could impact future class-certification battles.

The petition asks the Court to decide whether a district court may rely on “proof” that does not comport with the Federal Rules of Evidence and Civil Procedure to certify a class action. The Court previously granted certiorari on this question in Comcast Corp. v. Behrend, but did not end up answering it, because the defendant failed to preserve its evidentiary objection below.

Unlike in Comcast, the issue is now fully preserved for the Court’s review in Taylor Farms Pacific. The underlying case involves a group of employees claiming meal- and rest-break violations under California labor law. In an effort to show a common meal-break policy and demonstrate that damages could be calculated using common proof, plaintiffs’ counsel submitted a somewhat baffling, 9,000-page spreadsheet. The spreadsheet lists and tallies thousands of alleged meal-break violations. Although plaintiffs’ counsel claimed to have pulled these allegations from time records produced by the employer, no description of the underlying data or methodology—no authentication—accompanied the plaintiffs’ motion for class certification.

Over defense objection, the Eastern District of California considered and relied on the document to certify a wage-and-hour class action, holding that the Federal Rules of Evidence do not apply during class certification. In an unpublished opinion, the Ninth Circuit affirmed this rule through a blanket adoption of the district court’s reasoning. That decision is cert-worthy for two reasons.

First, the Ninth Circuit’s decision deepens a circuit split. The Second, Third, Fifth, Seventh, and D.C. Circuits all require some scrutiny over facts offered in support of a motion for class certification to determine whether the proffered proof is indeed “evidence.” In contrast, the Eighth Circuit and now the Ninth do not require the plaintiffs’ “proof” to be admissible evidence in order to sway a court’s certification decision under Rule 23.

Second, the decision ignores the Supreme Court’s most recent discussions about what Rule 23 requires at the certification stage: a rigorous analysis, affirmative demonstration, and evidentiary proof. In fact, the plaintiffs’ spreadsheet of the employer’s alleged meal-break violations in Taylor Farms Pacific is more akin to pleading than evidence. Yet the court has required more than pleadings to satisfy Rule 23 since deciding General Telephone Co. v. Falcon in 1982.

While admissibility issues usually arise over expert evidence during class certification, such as in Comcast, the question presented by Taylor Farms Pacific has even broader implications.  The Ninth Circuit’s rule, if left unreviewed, will open the door throughout the circuit to allow the plaintiffs’ bar to rely on any unauthenticated “facts”—expert, lay, and even attorney-created—to reach certification in future class actions.  It is tantamount to returning the Rule 23 inquiry back into a mere pleading standard. On behalf of DRI, Bradley attorneys Scott Smith, Mike Pennington and Angela Schaefer co-authored an amicus brief with the U.S. Supreme Court in support of the petitioner’s request for a writ of certiorari in Taylor Farms Pacific, Inc. v. Pena.