On May 3, 2018, the Ninth Circuit found that the Sali district court abused its discretion in denying certification of a class, where the district court did not consider inadmissible evidence. Plaintiff’s class certification motion relied on a declaration from a paralegal relating to the class members’ payroll records and their employer’s pay practices that were ruled inadmissible. The Ninth Circuit stated that it had never equated a district court’s “rigorous analysis” of a class certification decision with a “mini-trial,” and found that the district court should therefore not limit its consideration of class certification to only admissible evidence. The Ninth Circuit’s decision deepens a growing divide among the circuits on this topic. Other courts, like the Fifth and Seventh Circuits, require that evidence supporting class certification must be admissible. Despite this circuit split, the Supreme Court recently denied certiorari in Taylor Farms Pacific, Inc. v. Pena. Taylor Farms raised the question of whether a trial court may certify a class action based on inadmissible evidence. Unfortunately, the take away is that in the Ninth Circuit, admissible evidence is not required to support class certification. While it is not to say that defendants should not challenge a class certification motion based on inadmissible evidence, it does make class certification more achievable for plaintiffs.
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