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The Ninth Circuit Rules That Supporting Evidence Need Not Be Admissible at the Class Certification “Preliminary Stage” of a Suit

Related Lawyers: Jeanette Bayoumi
Related Practice Areas: Antitrust / Competition
Authors: Jeanette Bayoumi*

A Ninth Circuit panel has held that evidence submitted to support certification need not be admissible at trial to be considered at the “preliminary stage” of class certification. By limiting “class-certification stage proof to admissible evidence,” the panel in Sali v. Corona Regional Medical Center stressed, a court “risks terminating actions before a putative class may gather crucial admissible evidence.”[1] The decision, issued on May 3, 2018, reversed and remanded the district court’s refusal to certify seven classes of Registered Nurses (“RNs”) claiming they were underpaid by the Corona Regional Medical Center (“Corona”).

In support of their motion for class certification, representative plaintiffs Marlyn Sali and Deborah Spriggs submitted a declaration put together by a paralegal at their counsel’s firm to demonstrate putative class injuries. The paralegal reviewed time and payroll records for Sali and Spriggs to ascertain whether they had been properly compensated under Corona’s rounding-time pay practice. The rounding-time policy was used to pay RNs their hourly wage. For example, if a RN clocked in at 6:53 or at 7:07 a.m., the RN’s time would be rounded to 7:00 a.m. Using a random sampling of their timesheets, the paralegal used Excel spreadsheets to compare the impact of the rounding-time policy on the named plaintiffs’ pay. Corona objected to the declaration on multiple grounds, leading the district court to rule that the declaration was inadmissible.

Notably, the district court denied class certification on three grounds: (1) that Federal Rule of Civil Procedure 23(a)’s typicality requirement was not satisfied because the class representatives did not submit “admissible evidence” of their injuries; (2) that Plaintiff Spriggs and class counsel could not adequately represent the class;[2] and (3) that two of the seven proposed classes did not satisfy Rule 23(b)(3)’s predominance requirement.

Class Evidence Need Not Be Admissible At Trial.

In denying class certification, the district court had ruled that the paralegal’s declaration was inadmissible evidence because the paralegal extracted the data without explaining what method he used to reach his results. Additionally, the district court found that this evidence did not support a finding that plaintiffs had demonstrated their injuries were typical of the proposed class. The Ninth Circuit panel reversed, holding that although the district court had not “squarely addressed the nature of the ‘evidentiary proof’ a plaintiff must submit in support of class certification,” such proof “need not be admissible evidence.”[3] This is so, according to the panel, because transforming the preliminary stage of class certification “into an evidentiary shooting match inhibits an early determination of the best manner to conduct the action.”[4]

The Ninth Circuit’s holding “aptly illustrates” why greater “evidentiary freedom”[5] is needed at the class certification stage. The paralegal’s analysis was not necessarily wrong. According to the panel, by relying on admissibility alone to strike the paralegal’s analysis, the district court incorrectly “rejected evidence that likely could have been presented in an admissible form at trial.”[6] Accordingly, inadmissibility alone is “not a proper basis to reject evidence presented in support of class certification.”[7]

Noting that at the class certification stage a district court must conduct a “rigorous analysis,” the panel emphasized that conducting this analysis does not equate to conducting a “mini trial,” adding that the admissibility of evidence “must not be dispositive.”[8] The panel expressly rejected the notion of “[a]pplying formal strictures of trial to such an early stage of litigation,” saying that doing so “makes little common sense.”[9]

Moreover, the panel noted that the evidence needed to prove a class’s case is often in the defendant’s possession, and can only be obtained through discovery procedures. As such, “[l]imiting class-certification-stage proof to admissible evidence risks terminating actions before a putative class may gather crucial admissible evidence.”[10] Therefore, it is only necessary that a district court consider “material sufficient to form a reasonable judgement” on each of Rule 23(a)’s requirements—a district court should not limit its consideration to merely admissible evidence.[11] Instead, a court’s inquiry into the evidence’s “ultimate admissibility should go to the weight that evidence is given at the class certification stage,” and the court may consider whether plaintiff’s proof “is, or will likely lead to, admissible evidence.”[12]

The Ninth Circuit recognized that there was a circuit split on the issue of whether evidence must be admissible to support class certification. The Fifth Circuit specifically has held that the admissibility of evidence is required at the class certification stage.[13] The Eighth Circuit, on the other hand, like the Ninth Circuit in Sali, has held that the class certification stage warrants “greater evidentiary freedom,” because the court’s preliminary review of evidence is bound to include “evidentiary uncertainty” and thus, the court’s “tentative” inquiry on a motion for class certification only requires looking into questions of predominance and whether a class action is the superior method of adjudicating the controversy.[14]

The Ninth Circuit Panel Held The District Court Erred In Its Reading And Application of California Law To Its Rule 23(b)(3) Predominance Analysis.

Turning to the district court’s Rule 23(b)(3) predominance analysis, the Ninth Circuit panel declared that the district court’s denial of certification as to two of the subclasses—the rounding-time and wage-statement classes—were errors of law.

As to the rounding-time class, the district court concluded that individualized issues predominated with respect to determining whether Corona’s rounding time policy, whereby Corona would round minutes worked to the nearest quarter hour, resulted in underpayment to RNs. It cited California law that individual findings were required to determine whether RNs were “actually working” when they punched-in. Such activities as waiting in the break room, getting coffee, or chatting with co-workers could not be counted. The Ninth Circuit disagreed, ruling that under California law, time spent “actually working” includes time when an employee is subject to the employer’s control.[15]

As to the wage-statement class, the Ninth Circuit held the district court had interpreted California Labor Code § 226 as requiring the court to determine whether individual class members were actually damaged by Corona’s policy. The Ninth Circuit panel rejected this holding, stating that under California law, a violation of § 226 is a per se injury, and thus, no individualized issue of damages existed.[16]

Key Takeaways

In the Eighth and Ninth Circuits, evidence need not be admissible to support class certification. The Fifth Circuit clearly disagrees and the rule is unclear elsewhere. Accordingly, whether class action plaintiffs need to provide trial-admissible evidence at the early stage of class certification, at this time, depends upon the circuit in which the suit is pending.

Footnotes

[1] No. 15-56460, 2018 WL 2049680, at *5 (9th Cir. May 3, 2018).

[2] The district court also had held that Plaintiff Spriggs could not act as a class representative for full-time employees because she herself was not a full-time employee. The panel reversed, noting that because Plaintiff Sali was a full-time employee and could adequately represent the class, this was not grounds for denial of class certification. Additionally, the panel declared that the district court’s holding that the designated class attorneys could not adequately serve as class counsel was “premature” and “an abuse of discretion.” Sali v. Corona Regional Medical Center, No. 15-56460, 2018 WL 2049680, at *8 (9th Cir. May 3, 2018).

[3] Id. at *5.

[4] Id.

[5] Id. at *6.

[6] Id.

[7] Id. at *5.

[8] Id. at *7.

[9] Id. at *5.

[10] Id.

[11] Id. at *5 (quoting Blackie v. Barrack, 524 F.2d 891, 901 (9th Cir. 1975)).

[12] Id. at *7.

[13] See Unger v. Amedisys Inc., 401 F.3d 316, 319 (5th Cir. 2005). The Seventh and Third Circuits have only suggested that expert evidence must be admissible. See e.g. Messner v. Northshore Univ. Health Sys., 669 F.3d 802, 812 (7th Cir. 2012); In re Blood Reagents Antitrust Litig., 783 F.3d 183, 187 (3d Cir. 2015).

[14] Sali, 2018 WL 2049680, at *6 (quoting In re Zurn Pex Plumbing Prod. Liab. Litig., 644 F.3d 604, 612-13 (8th Cir. 2011)).

[15] Id. at *9.

[16] Id. at *10.

*Jeanette Bayoumi is an associate in the New York office.