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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, March 2, 2023

Recorded event now available

or call 1-800-926-7926

This CLE webinar will discuss what evidence courts in different circuits can, will, or may consider when ruling on a motion to certify a class under Federal Rule 23. The panel will review the existing split among the circuits regarding whether courts should entertain only admissible evidence or whether they may consider evidence that would be excluded at trial, the differing rationales in the circuits, and then 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.


Numerous splits exist among the circuits on two key certification issues: What is required to prove the elements for class certification and whether plaintiff's certification evidence must be admissible. Further, courts apply different admissibility standards to fact evidence than to expert evidence.

Certain courts have issued clear guidance on these important issues, while others have remained circumspect, sending mixed signals. This is particularly vexing for defendants, who may be sued in more than one district or circuit.

What is sufficient for class certification in one jurisdiction may be inadequate in another. With standards unsettled, 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

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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