Academic journal article Michigan Law Review

Making Rule 23 Ideal: Using Amultifactor Test to Evaluate the Admissibility of Evidence at Class Certification

Academic journal article Michigan Law Review

Making Rule 23 Ideal: Using Amultifactor Test to Evaluate the Admissibility of Evidence at Class Certification

Article excerpt


The stories of the Walmart work environment for women are nothing short of disturbing. Dee Gunter, a former female employee at a Walmart store, detailed the pervasive discrimination she experienced as an employee. Men she trained, and who had less experience, were frequently promoted over her, and her supervisor sexually propositioned her. When she met with her district manager to discuss these experiences, she was fired.1

The company's employment data at the time reflected a troubling pattern: two-thirds of managers were men, despite two-thirds of employees being women.2 Despite earning higher performance ratings, women were frequently paid less than men for the same tasks, and women were consistently "placed in lower-paying jobs."3

Dee Gunter joined a class action lawsuit along with 1.5 million current and former employees seeking justice against Walmart.4 But justice never came. The nationwide class was ultimately not certified, so the class action failed. Class actions enable claims that are too costly for plaintiffs to litigate individually.5 Ideally, all meritorious plaintiff classes that satisfy the Federal Rules of Civil Procedure (FRCP) criteria would be certified. But over time, a series of changes in civil procedure have made it more difficult for certain plaintiff classes, especially those composed of "disempowered groups," to obtain certification at all.6

Circuit courts are currently split on an issue that may make class certification even more difficult. The controversy at issue involves the application of the Daubert standard for expert evidence at the class certification stage. If applied at the certification stage, Daubert would require that the judge rely solely on expert testimony that would be admissible at trial in making the certification decision.7 To apply Daubert at certification would make it more difficult for plaintiffs to obtain certification because evidence would have to meet a heightened admissibility standard. But without a rule stating that Daubert applies at certification, judges may use their discretion to determine whether a class should be certified based on the evidence presented to them.8

There are advantages and disadvantages to applying the Daubert standard at class certification. One purported benefit is decreased settlement pres- sure in cases involving nonqualified or nonmeritorious classes.9 One drawback is potential plaintiffs' diminished access to the courts.10 These competing considerations have led to a circuit split on whether and to what extent a full Daubert analysis should be conducted at certification. Resolving the split would make decisions more consistent and discourage plaintiffs from forum shopping. Potential resolutions, however, must take into consideration all types of class actions and all types of evidence beyond just expert testimony.

This Note explores the legal and policy concerns underlying the circuit split over Dauberťs applicability at the class certification stage. It proposes a standard that can resolve that split and govern the applicability of the Federal Rules of Evidence (FRE) more broadly. Part I discusses class certification procedure, the FRE, and the benefits and drawbacks of applying the Daubert standard at the certification stage. Part II examines the current split over Daubert's applicability at certification and considers the issue in the broader context of all class action cases. Part III uses the lessons drawn from the Daubert debate to propose an optimal standard of admissibility for the class certification stage that would adequately balance the concerns of both putative plaintiffs and defendants. The proposed standard could further apply to other provisions of the FRE at class certification.

I. The Interaction Between the FRE and the FRCP

Class action lawsuits in their modern form were introduced to federal civil procedure in 1966 when Rule 23 was added to the FRCP.11 Class actions are a form of representative litigation, allowing one representative plaintiff to represent the interests of other plaintiffs who were affected by the actions of a given defendant. …

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