McGuireWoods Lawyers Pen Law360 Article on Class Certification Evidence

July 27, 2022

McGuireWoods partner Alexander Madrid and associate Allison Ebeck wrote a July 20, 2022, article for Law360 explaining how a recent federal appeals court opinion could help resolve a debate over the types of evidence that are admissible in determining class certification. 

The U.S. Court of Appeals for the 3rd Circuit previously opined that expert evidence must meet the Daubert standard for admissibility to be considered in class certification. The court has not yet held that fact evidence must meet the same standard. But the 3rd Circuit’s June decision in Allen v. Ollie’s Bargain Outlet hints that the court may soon come down in favor of the admissibility standard.

The article, “3rd Circ. Judge Offers Hints on Class Cert. Evidence,” is an addendum to a two-part series Madrid, Ebeck and associate Chelsey Dawson Klein authored for Law360 in 2021.

Allen vacated a grant of class certification. The majority declined to decide whether fact evidence must be consistent with the Federal Rules of Evidence, instead declaring the plaintiffs’ evidence was too speculative to determine if there was a sufficient number of wheelchair users who had difficulty navigating Ollie’s stores

However, the authors wrote, Judge David Porter’s concurring opinion shows he wants to rule on the issue — and soon. Porter stated that “the conclusion is clear: Class certification proceedings are not exempt from the rules of evidence” and “there is no principled basis for distinguishing between fact and expert evidence.”

Porter’s opinion led Madrid and Ebeck to conclude that the court is likely to apply the same standard to fact evidence that it already has for expert evidence. Litigants in the circuit should account for this possibility as they seek to obtain or block class certification, they wrote.