In Sali v. Corona Reg’l Med. Ctr., 889 F.3d 623 (9th Cir. 2018), the Ninth Circuit clarified that although a plaintiff must satisfy Federal Rule of Civil Procedure 23’s prerequisites with “evidentiary proof”—such proof need not be admissible evidence at class certification.

The named plaintiffs sued their former employer in August 2013 for wage-and-hour and meal-and-rest break violations.  The case was removed to federal court.  In February 2015, the plaintiffs filed their motion for class certification, seeking certification of seven classes.

In support of their motion, the plaintiffs submitted a declaration of a paralegal to demonstrate their injuries.  The district court, however, struck the declaration as inadmissible, concluding it was unauthenticated and constituted improper opinion and/or expert testimony.  The court denied certification concluding, among other things, that the plaintiffs failed to submit admissible evidence of their injuries, and thus failed to satisfy Federal Rule of Civil Procedure 23(a)’s typicality requirement.  

The Ninth Circuit reversed, finding “[a]t this preliminary stage a district court may not decline to consider evidence solely on the basis that the evidence is inadmissible at trial.”  The court explained that a certification order is “preliminary” and therefore applying “the formal structures of trial to such an early stage of litigation makes little common sense.”

“Notably, the evidence needed to prove a class’s case often lies in a defendant’s possession and may be obtained only through discovery.  Limiting class-certification-stage proof to admissible evidence risks terminating actions before a putative class may gather crucial admissible evidence.  And transforming a preliminary stage into an evidentiary shooting match inhibits an early determination of the best manner to conduct the action.”

The Ninth Circuit relied on the Eighth Circuit’s reasoning in In re Zurn Pex Plumbing Prod. Liab. Litig., 644 F.3d 604, 612–13  (8th Cir. 2011), which reasoned that the different phases in litigation—class certification, summary judgment, and trial—warrant greater evidentiary freedom at class certification.”  The court distinguished summary judgment—which “ends litigation without a trial”—from a motion for class certification—which the court described as “tentative,” “preliminary,” and “limited.”

The Ninth Circuit, however, cautioned that courts “need not dispense with the standards of admissibility entirely. . . . But admissibility must not be dispositive.”  Instead, whether the evidence is ultimately admissible should go to the weight of that evidence at class certification.   

The Ninth Circuit’s analysis raises additional points for consideration.  First, while a ruling on class certification is not, technically, dispositive, it often does have that effect in practice.  Should the court’s analysis have taken the practicality of class certification litigation into account?  Second, though Rule 23(c)(1)(A) requires the court to decide certification issues “at an early practicable time” in the case, courts often provide amble time to conduct discovery—for example, the named plaintiffs in Sali filed their motion for class certification almost 1.5 years after filing their complaint, which would seem to be sufficient time to gather “crucial admissible evidence” for purposes of certification. 

Ultimately, Sali widens the schism between the Circuits, as the Fifth, Seventh, and Third Circuits have suggested—if not specifically found—that evidence must be admissible in order to support class certification.   It will be interesting to see which side of the divide the other circuits will fall on, as well as if the Sali defendants will appeal this decision.