McGuireWoods partner Alexander Madrid and associates Allison Ebeck and Chelsey Dawson co-authored a two-part Law360 series published July 15-16, 2021, on courts’ clashing standards for evidence at class certification.
Following the U.S. Supreme Court’s decision in Comcast Corp. v. Behrend, the authors explained, courts and practitioners have had difficulty navigating the presentation of evidence at class certification. While the high court said movants must demonstrate they meet the requirements of Rule 23 through evidentiary proof, it did not specify whether this proof must come in the form of admissible evidence or whether fact and expert evidence should be treated equivalently.
In part 1 of their analysis, the authors looked at the split among the circuit courts on fact evidence. In part 2, they considered expert evidence and takeaways from the circuit court opinions.
Until the Supreme Court addresses the issue definitively or the law evolves toward uniformity, the authors said, practitioners are well-advised to pay attention to courts’ differing evidentiary standards.