Courts' Clashing Standards For Evidence At Class Cert.: Part 2

By Alexander Madrid, Allison Ebeck and Chelsey Dawson (July 16, 2021, 5:53 PM EDT) -- In the 2013 case Comcast Corp. v. Behrend, the U.S. Supreme Court explained that a party seeking class certification must satisfy the requirements of Federal Rule of Civil Procedure 23 through evidentiary proof. But the court's opinion did not directly address whether the proffered evidence must be admissible.

As a result, the question of whether plaintiffs moving to certify a class must use admissible evidence remains unresolved. In this two-part article, we survey the circuit approaches to this question.

The circuits are clearly split on whether evidence must be admissible to be considered at class certification. Yet what is most notable is that the...

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