MAKING RULE 23 IDEAL: USING A MULTIFACTOR TEST TO EVALUATE THE ADMISSIBILITY OF EVIDENCE AT CLASS CERTIFICATION.

• Author: Lesley, Cianan M.

Circuit courts are split on whether and to what extent the Daubert standard should apply at class certification. Potential plaintiffs believe that application of Daubert would make it nearly impossible to obtain class certification. For potential defendants, the application of the standard is an important way to ensure that the certification process is fair. This Note examines the incentives underlying the push to apply the Daubert standard at class certification and the benefits and drawbacks associated with that proposal. It proposes a solution that balances the concerns of both plaintiffs and defendants by focusing on three factors: the obstacles to admissibility, the centrality of the evidence to certification, and the likelihood that evidence could evolve to an admissible state after full discovery. This standard could also be applied when admissibility concerns grounded in other provisions of the Federal Rules of Evidence are raised.

Table of Contents Introduction I. The Interaction Between the FRE and the FRCP II. Different Standards for Different Classes III. Applying a Multifactor Test to the Certification Decision Conclusion INTRODUCTION

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 Daubert's 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.

1. 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. (12) The purpose of a class action is to save potential litigants, and the courts, substantial resources by consolidating plaintiffs with common claims into one group, represented by a class representative. (13) Class actions also mitigate the massive economies of scale defendants enjoy from litigating numerous substantially similar cases, by allowing plaintiffs to benefit from the same investment as defendants. (14)

   The FRCP govern the certification of class actions through Rule 23. (15) Although there is no specific timetable, the rule dictates that certification must occur early in the litigation. (16) Importantly, certification is intended to occur before merits discovery. (17) Rule 23(a) sets out four requirements that every class action must satisfy: (1) commonality, (2) typicality, (3) adequacy, and (4) numerosity. (18) If putative classes fail to satisfy these requirements, then the plaintiffs may only pursue individual lawsuits. In most cases, individual suits are impractical due to the high cost of litigation and the low payout per claim. (19)

   To demonstrate commonality, putative class plaintiffs must show that there are "questions of law or fact common to the class." (20) Before 2011, commonality was not difficult to demonstrate at the certification stage. (21) As one scholar notes, "[i]t was all but impossible to find cases [before 2011] in which courts denied certification because of a failure to satisfy Rule 23(a)(2)." (22)

   Wal-Mart Stores, Inc. v. Dukes changed this approach to commonality. (23) In Dukes, a class of current and former female employees of Walmart stores alleged that local supervisors made discretionary, discriminatory promotion and payment decisions in violation of Title VII. (24) The putative class argued that because Walmart afforded supervisors this discretion and was aware of the discriminatory effect it had on women, but failed to take steps to limit or eliminate the discretion, Walmart was responsible for the alleged disparate treatment. (25)

   To demonstrate that they met the requirements of Rule (23), the putative class presented three types of evidence: statistical evidence, anecdotal evidence, and expert testimony from a sociologist who conducted a "'social framework analysis' of Wal-Mart's 'culture' and personnel practices, and concluded that [Wal-Mart] was 'vulnerable' to gender discrimination." (26) The Court found that even if the expert testimony had been able to demonstrate that plaintiffs were subject to discrimination, it was insufficient to demonstrate that the plaintiffs had been subject to the same discriminatory treatment in all stores and by all local supervisors. (27) It was not sufficient that all plaintiffs were subject to discrimination, or even that they all were subject to discrimination in violation of Title VII. (28) Instead, the Court explained that to satisfy commonality, the plaintiffs must demonstrate that the injury is so common among the class that it could be likened to "the assertion of discriminatory bias on the part of the same supervisor." (29)

   It is difficult to overstate the magnitude of the change that Dukes made on the commonality question. With Dukes, the question of commonality went from a foregone conclusion to an often prohibitive burden. As a result, obtaining certification against a major corporation became significantly more difficult. (30) Now, not only do the questions need to be the same--"were all employees discriminated against?"--but the answers need to be the same, too--"yes, because this specific manager would never promote women." (31) Requiring sameness in these commonality questions and answers heightens the burden on putative class plaintiffs to produce evidence before discovery.

   Typicality is demonstrated by showing that "the claims or defenses of the representative parties are typical of the claims or defenses of the class." (32) Frequently, "[t]he commonality and typicality requirements of Rule 23(a) tend to merge." (33) Adequacy is shown by demonstrating that "the representative parties will fairly and adequately protect the interests of the class." (34) The Supreme Court has noted that this requirement, too, tends to merge with commonality and typicality. (35) Adequacy, however, also "raises concerns about the competency of class counsel and conflicts of interest" (36) because class members who are absent from the litigation are still bound by the outcome of the case. (37) Concerns about adequacy can arise when members of the class feel that the class counsel, the class representatives, or both do not adequately represent their interests due to conflicts of interest. (38) To...