Exacerbating Circuit Split, Sixth Circuit Holds Inadmissible Evidence May Be Relied on at Class Certification Stage

Following in the footsteps of the Eighth and Ninth Circuits’ decisions, the Sixth Circuit recently weighed in on whether a district court may rely on inadmissible evidence in granting class certification under Federal Rule of Civil Procedure 23(b), Lyngaas v. Ag, 992 F.3d 412 (6th Cir. 2021). Specifically, the court held that use of unauthenticated and ultimately inadmissible non-expert summary-report logs were proper evidence to support granting class certification.

The Sixth Circuit’s decision further exacerbates a circuit split in interpretation of the Supreme Court’s guidance. Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013). The Fifth Circuit, for example, requires plaintiffs provide “admissible evidence to justify class certification.” Unger v. Amedisys, Inc., 401 F.3d 316, 319 (5th Cir. 2005) (emphasis added). Similarly, the Third and Seventh Circuits require admissible expert testimony at the class certification stage. See In re Blood Reagants Antitrust Litig., 783 F.3d 183, 187 (3d Cir. 2015); Am. Honda Motor Co. v. Allen, 600 F.3d 813, 817 (7th Cir. 2010).

In Lyngaas, a Telephone Consumer Protection Act (TCPA) action, plaintiff Brian Lyngaas, D.D.S., brought a putative class action alleging two unsolicited fax advertisements were sent to over 46,000 numbers in promotion of the Curaprox Ultra Soft toothbrush manufactured by Curaden AG. An unauthenticated fax broadcaster’s summary-report logs purportedly detailed which fax numbers had received the advertisements at issue from Curaden AG’s U.S. subsidiary, Curaden USA.

The district court found the predominance and ascertainability requirements for class certification were met based on unauthenticated summary-report logs. However, as for the admissibility of the logs at the summary judgment phase, the district court held them inadmissible where the plaintiff ultimately failed to authenticate the logs, unable to present witnesses to attest to how the logs were created, or to vouch for their accuracy.

The Sixth Circuit upheld the district court’s determinations and emphasized the distinction between the evidentiary burden at summary judgment and trial with that of the class certification stage. It reasoned that inadmissible evidence was appropriate in certifying a class, because district courts must undertake a “rigorous analysis” of the Rule 23(b) requirements warranting “greater evidentiary freedom.” To decide otherwise, it explained, risked terminating an action before the putative class could gather crucial admissible evidence “and transforms a preliminary stage into an evidentiary shooting match.” Notably, however, it also acknowledged that while the evidence was not authenticated at the class certification stage, that evidence did exist and was supported by other corroborating evidence.

While the scope of the Sixth Circuit’s decision in Lyngaas arguably is limited to inadmissible non-expert evidence, the case highlights the implication of a lower evidentiary threshold at the class certification stage. Further, practitioners should continue to be aware of other circuits’ standards regarding use of inadmissible evidence at the class certification stage. Whether the Supreme Court will eventually weigh in on this clear discrepancy remains to be seen.