Class Certification Evidence: Standards of Admissibility and Probative Value Among the Circuits

Strategies for Opposing or Narrowing Class Certification and Preserving Objections

Recording of a 90-minute CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Thursday, February 17, 2022

Recorded event now available

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This CLE course will focus on what evidence a court may consider when ruling on a plaintiff's motion to certify a class action. In particular, panelists will discuss whether such courts are limited to considering only admissible evidence or whether, when determining certification, the court may consider evidence that it would exclude at trial. The panel will review the existing split among the circuits, discuss the various rationales, and offer best practices and strategies for opposing or narrowing class certification both in jurisdictions that have not yet taken a side and those that have.


Class certification typically increases a putative class's bargaining power in settlement negotiations, thus evaluating the importance of how defendants choose to handle evidence both pre- and post-certification. Yet, how a particular court will analyze class certification and what evidence may be admitted in class certification proceedings is not uniform among the federal circuits or district court, and the split may be getting worse. Additionally, there are numerous splits among the circuits on what is required to prove the elements for class certification.

Certain courts expressly require that evidence at class certification be admissible while others have remained circumspect, sending mixed signals. Further, courts apply different admissibility standards to fact evidence than to expert evidence.

A defendant may be sued in more than one district or circuit, and what is sufficient for class certification in one may not be in another. Because the standards are not settled, counsel must anticipate and preserve the right to revisit class certification by preserving all objections and the factual record.

Listen as the panel of class action attorneys discusses the standards of admissibility of evidence at certification and best strategies for leveraging ambiguities.



  1. Fact evidence
    1. Need not be admissible
    2. Must be admissible
    3. Ambiguous
  2. Expert evidence
    1. Full Daubert analysis
    2. Limited Daubert analysis
  3. Strategies for managing and leveraging the uncertainty


The panel will explore these and other key issues:

  • How can defense counsel preserve objections to admissibility?
  • How can counsel leverage the law of other circuits in jurisdictions with no controlling precedent?
  • What does how a court assesses evidence imply about its view on admissibility standards?


Daly, Kevin
Kevin P. Daly

Robinson & Cole

Mr. Daly focuses his practice on complex commercial litigation and trade compliance issues. He is a member of...  |  Read More

Madrid, Alexander
Alexander M. Madrid


Mr. Madrid has a broad range of litigation and regulatory experience representing financial institutions and other...  |  Read More

Ruttinger, Michael
Michael J. Ruttinger

Tucker Ellis

Mr. Ruttinger develops and implements strategies for clients in class action, commercial and complex litigation across...  |  Read More

Sparkes, Robert
Robert W. Sparkes, III

K&L Gates

Mr. Sparkes has extensive experience in complex civil and commercial litigation and regularly represents banking,...  |  Read More

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