Class Certification Evidence: Standards of Admissibility and Probative Value Among the Circuits
Strategies for Opposing or Narrowing Class Certification and Preserving Objections
Course Details
- smart_display Format
On-Demand
- signal_cellular_alt Difficulty Level
- work Practice Area
Class Action and Other Litigation
- event Date
Thursday, March 2, 2023
- schedule Time
1:00 p.m. ET./10:00 a.m. PT
- timer Program Length
90 minutes
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This 90-minute webinar is eligible in most states for 1.5 CLE credits.
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This CLE webinar will discuss what evidence courts in different circuits can, will, or may consider when ruling on a motion to certify a class under Federal Rule 23. The panel will review the existing split among the circuits regarding whether courts should entertain only admissible evidence or whether they may consider evidence that would be excluded at trial, the differing rationales in the circuits, and then offer best practices and strategies for opposing or narrowing class certification both in jurisdictions that have not yet taken a side and those that have.
Mr. Daly focuses his practice on complex commercial litigation and trade compliance issues. He is a member of Robinson+Cole's Business Litigation Group and Manufacturing Industry Team.
Mr. Ruttinger develops and implements strategies for clients in class action, commercial and complex litigation across the country. He advises and advocates for clients at all phases of a case, from pre-litigation consulting on regulatory issues, to dispositive and class-certification motions, to appeals. Mr. Ruttinger regularly handles complicated, high-stakes issues for clients ranging from challenges to class certification to developing strategies for seeking summary judgment and excluding unreliable expert opinions. He is a frequent writer and speaker on the application of class action and product liability laws to emerging technologies.
Mr. Sparkes has extensive experience in complex civil and commercial litigation and regularly represents banking, mortgage lending and consumer financial services institutions in consumer class actions and individual litigation matters in federal and state courts throughout the U.S. He also has experience representing a variety of other corporate and individual clients in contract, tort, class action, consumer protection and other general business litigation matters.
Numerous splits exist among the circuits on two key certification issues: What is required to prove the elements for class certification and whether plaintiff's certification evidence must be admissible. Further, courts apply different admissibility standards to fact evidence than to expert evidence.
Certain courts have issued clear guidance on these important issues, while others have remained circumspect, sending mixed signals. This is particularly vexing for defendants, who may be sued in more than one district or circuit.
What is sufficient for class certification in one jurisdiction may be inadequate in another. With standards unsettled, counsel must anticipate and preserve the right to revisit class certification by preserving all objections and the factual record.
Listen as the panel of class action attorneys discusses the standards of admissibility of evidence at certification and best strategies for leveraging ambiguities.
- Fact evidence
- Need not be admissible
- Must be admissible
- Ambiguous
- Expert evidence
- Full Daubert analysis
- Limited Daubert analysis
- Strategies for managing and leveraging the uncertainty
The panel will explore these and other key issues:
- How can defense counsel preserve objections to admissibility?
- How can counsel leverage the law of other circuits in jurisdictions with no controlling precedent?
- What does how a court assesses evidence imply about its view on admissibility standards?
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