Sixth Circuit Holds Non-Expert Evidence Need Not Be Admissible to Support Class Certification, but Approves Stringent Claim Process That Aids Defendants
At Class Certification Stage, Non-Expert Evidence Must Be Reliable, but Not Necessarily Admissible: As the Supreme Court explained 40 years ago in General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 161 (1982), district courts must undertake a “rigorous analysis” to ensure that the requirements for class certification under Rule 23 have been satisfied. This analysis may require the court to “probe behind the pleadings,” while at other times, “the issues are plain enough from the pleadings.” Id. at 160. The Supreme Court has more recently held that to prevail on a motion for class certification, the plaintiff must “satisfy through evidentiary proof at least one of the provisions of Rule 23(b).” Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013).
Some courts have suggested that this “evidentiary proof” must be in the form of “admissible evidence.” See, e.g., Unger v. Amedisys, Inc., 401 F.3d 316, 319 (5th Cir. 2005) (stating that “findings must be made based on adequate admissible evidence to justify class certification”). The Sixth Circuit has now joined the Eighth and Ninth Circuits in rejecting such an approach.
In Lyngaas v. Curaden AG, Nos. 20-1199/1200/1243 (6th Cir. Mar. 24, 2021), a case brought under the Telephone Consumer Protection Act, 47 U.S.C. § 227, the Sixth Circuit affirmed the district court’s order certifying a class consisting of recipients of certain facsimile messages. The district court deemed the predominance and ascertainability requirements of Rule 23 satisfied based on unauthenticated summary-report logs submitted by the plaintiff, which purportedly identified by fax number each successful recipient of the fax messages at issue. In affirming the district court’s ruling, the Sixth Circuit sided with the Eighth and Ninth Circuits in holding that, for purposes of class certification, the moving party’s evidence need not be admissible under Federal Rules of Evidence to satisfy its showing of predominance and ascertainability. Slip Op. at p. 19 (citing 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, 1004 (9th Cir. 2018)). The Lyngaas court dismissed as dicta the Fifth Circuit’s statements in Unger about requiring “admissible evidence,” and it expressly limited its ruling to non-expert evidence, leaving for another day the question of whether for class certification purposes expert evidence needs to be admissible under the Daubert standard. Slip. Op. at p. 19.
In explaining its rationale, the Sixth Circuit, much like the Ninth Circuit in Sali, emphasized the differences between Rule 23 class certification, Rule 56 summary judgment, and trial, which differences, in its view, “warrant greater evidentiary freedom at the class certification stage.” Id. (citation omitted). The Lyngaas court explained that class certification may occur at an early time in the case, before discovery is complete; and, unlike a summary judgment or trial, it is inherently tentative, as the class could be decertified. The Sixth Circuit reasoned, therefore, that applying strict evidentiary rules for civil trials did not make as much sense at the class certification stage, particularly where the court considered the evidence to be reliable and had an indication that plaintiff would be able to present at trial the evidence in question in an admissible format. Id. at 19-20. Based on this rationale, the Sixth Circuit approved of the district court’s reliance on unauthenticated, but what it deemed as reliable, summary-report logs and other corroborating evidence in the form of defendants’ target lists of fax numbers and emails detailing the transmissions. Id. at 21. The Sixth Circuit also noted that it would be particularly inappropriate to rely at the class certification stage on a “formalistic” lack of authentication objection to the evidence in question when the plaintiff had assured the district court that he could authenticate the evidence “at trial.” Slip Op. at 21.
Rigorous Proof of Claims Process Approved: The Sixth Circuit did, however, make it slightly more difficult for individuals to demonstrate that they were damaged and entitled to any monetary relief by approving of a claim administration process that required individuals to submit sworn affidavits. Specifically, the court approved a claims administration process imposed by the district court to weed out individuals who do not fit within the class definition. Pursuant to this process, claimants were required to submit affidavits attesting to: (1) their name, (2) their contact information, including fax number and address, (3) their receipt of a fax from the defendant, and (4) that they did not expressly invite or permit the defendant to send them faxes. Slip Op. at 24. The claims administrator would then “verify[ ] the information contained in each claimant’s affidavit with the information reflected on the target lists,” and the parties would “confer regarding disputes or agreement with respect to each claimant’s status as a class member.” Id.
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While offering some clarity, the Lyngaas decision is a mixed bag for class action defendants. On the one hand, it takes off the table an argument that non-expert evidence must be admissible under the Federal Rules of Evidence to support certification of a class. On the other hand, it limits the number of people included in the class, and ultimately entitled to any recovery, by establishing a more rigorous claims administration process for claimants to follow. As a recent study by the Federal Trade Commission showed, even in the settlement context, the median consumer claims response rate is approximately 9%, and that rate can drop significantly depending on the type of notice provided.1 Thus, this decision may have the practical effect of meaningfully narrowing classes certified by courts (and the potential exposure to defendants), by following a court-established claim administration process.
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1Consumers and Class Actions: A Retrospective and Analysis of Settlement Campaigns, An FTC Staff Report (Sept. 2019), available at: https://www.ftc.gov/system/files/documents/reports/consumers-class-actions-retrospective-analysis-settlement-campaigns/class_action_fairness_report_0.pdf.
