In Sali v. Corona Regional Medical Center, ___ F.3d ___ (9th Cir. May 3, 2018), the district court denied class certification because (among other reasons) the plaintiffs' evidence of adequacy and typicality was not admissible. The Ninth Circuit reversed, holding that admissible evidence is not required at the class certification stage:
Because a class certification decision “is far from a conclusive judgment on the merits of the case, it is ‘of necessity . . . not accompanied by the traditional rules and procedure applicable to civil trials.’” [In re] Zurn Pex [Plumbing Prod. Liab. Litig.], 644 F.3d [604,] 613 [(8th Cir. 2011)] (quoting Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974)). 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.
It follows that we have found an abuse of discretion where a “district court limited its analysis of whether” class plaintiffs satisfied a Rule 23 requirement “to a determination of whether Plaintiffs’ evidence on that point was admissible.” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 982 (9th Cir. 2011). Although we have not squarely addressed the nature of the “evidentiary proof” a plaintiff must submit in support of class certification, we now hold that such proof need not be admissible evidence.
Inadmissibility alone is not a proper basis to reject evidence submitted in support of class certification. “Neither the possibility that a plaintiff will be unable to prove his allegations, nor the possibility that the later course of the suit might unforeseeably prove the original decision to certify the class wrong, is a basis for declining to certify a class which apparently satisfies” Rule 23. Blackie v. Barrack, 524 F.2d 891, 901 (9th Cir. 1975). Therefore, in evaluating a motion for class certification, a district court need only consider “material sufficient to form a reasonable judgment on each [Rule 23(a)] requirement.” Id. The court’s consideration should not be limited to only admissible evidence.
Slip op. at 13-15 (footnote omitted).
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