Inadmissibility alone is not a proper basis to reject evidence submitted in support of class certification.  But the district court need not dispense with evidentiary admissibility standards entirely in conducting its rigorous analysis on a class certification motion.  The court should test expert evidence by the Daubert standard and should consider whether it is likely plaintiff will be able to prove the same facts with admissible evidence by the time of trial.  Any inquiry into the evidence’s ultimate admissibility should go to the weight that evidence is given at the class certification stage, not bar its consideration altogether at that stage.  The district court erred in excluding evidence as inadmissible and based on that exclusion determining the named plaintiffs were atypical.  The district court also abused its discretion in finding that plaintiff’s counsel was inadequate based on some discovery abuses and other problems without weighing those poor performances against the mass of other competent work they had performed in the case.  Finally, the district court abused its discretion in finding that individual issues predominated as to alleged Labor Code violations in rounding clocked time for compensation purposes.  Under California law, workers are entitled to compensation not only for time actually devoted to job performance but also to time they are subject to the employer’s control.  While actual time spent on performing the job might require individual proof, time subject to the employer’s control did not but rather was established by the employer’s policies.  Also, as to the pay stub class, common issues predominated because Labor Code section 226 entitles workers to statutory damages without proof of actual loss if the wage statement doesn’t meet statutory requirements.

Ninth Circuit Court of Appeal (Mendoza, J., sitting by designation); May 3, 2018; 2018 U.S. App. LEXIS 11497