Lin v. Everyday Beauty is an Eastern District of New York decision addressing an issue that has divided district courts in the Second Circuit and elsewhere: Whether a federal court may consider inadmissible evidence when deciding a class certification motion. This district court found that it could not do so.

The plaintiffs, former retail sales employees of the defendants, moved to certify a class of essentially everyone employed by the defendants, beauty supply stores, within a six-year period. According to the plaintiffs, the class would amount to approximately 350 people. They submitted five affidavits in support of their class certification motion. While the affidavits did contain statements by the affiants about their own employment experiences with the defendants, they also contained hearsay statements by other former employees of the defendants. These hearsay statements raised the issue of “whether evidence must be admissible to be considered on a Rule 23 motion.”

The court found that only admissible evidence should be considered at the class certification stage. First, the court quoted a Second Circuit case observing that class certification should be decided in the same way as other threshold issues, such as personal or subject-matter jurisdiction. The court then noted that inadmissible hearsay cannot be considered when deciding such threshold issues. Second, the court cited the Supreme Court’s “indication” in Wal-Mart v. Dukes that the evidentiary standards for admissibility of expert testimony apply at the class certification stage. The court reasoned that there is no logical basis for applying “only some of the Rules of Evidence to class certification motions. They should either apply in full, or not at all.”

The court went on to find that even if the hearsay statements in the plaintiffs’ affidavits were to be considered, the plaintiffs’ proposed class still could not be certified. Between the five affiants and the 18 hearsay declarants discussed in the affidavits, the plaintiffs had submitted evidence as to the experiences of only 23 former employees. Moreover, the hearsay statements in the affidavits had hardly any connection to the labor law claims being asserted by the proposed class. Such statements from 18 – or even 23 – former employees could not show that approximately 350 former employees had sufficiently common or typical experiences to tie them together as a class.

Lin v. Everyday Beauty Amore Inc., No. 1:18-cv-00729, 2019 WL 3037072 (E.D.N.Y. July 11, 2019).