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Eleventh Circuit Reverses Course on Ascertainability Standard in Class Actions; Turns Tide in Plaintiffs’ Favor

On February 2, 2021, the United States Court of Appeals for the Eleventh Circuit reversed course on an emerging trend of case law concerning the ascertainability standard for class actions under Fed. R. Civ. P. 23, holding proof of administrative feasibility in identifying absent class members was not required at the class certification stage.

This debate has consumed class action law for at least the last 7 years and caused Circuit splits. Under the administrative feasibility standard originally annunciated by the Third Circuit and then applied by the Eleventh Circuit in unpublished decisions, courts required putative class representatives to prove identification of absent class members would be “a manageable process that does not require much, if any, individual inquiry” to obtain class certification. Carrera v. Bayer Corp., 727 F.3d 300, 308 (3rd Cir. 2013); Karhu v. Vital Pharms., Inc., 621 Fed. Appx. 945, 947 (11th Cir. 2015). The First and Fourth Circuits also applied a close version of this standard. In re Nexium Antitrust Litigation, 777 F.3d 9 (1st Cir. 2015); EQT Prod. Co. v. Adair, 764 F.3d 347 (4th Cir. 2014). However, more recent cases seem to be moving towards the plaintiffs. The Second, Sixth, Seventh, Eighth, and Ninth circuits have now rejected this “heightened” ascertainability standard, and some judges on the Third Circuit have expressed a desire to re-examine the standard.

In Cherry v. Dometic Corporation, — F. 3d –, 2021 WL 346121 (11th Cir. Feb. 2, 2021), 18 Plaintiffs filed a putative class action against Dometic, the manufacturer of gas-powered refrigerators used in recreational vehicles, alleging a defect. At the class certification stage, Plaintiffs sought to certify a class of all persons in selected states who purchased certain models of the refrigerators since 1997. Dometic argued Plaintiffs failed to show the class was “ascertainable” because Plaintiffs did not establish the administrative feasibility of identifying absent class members. Dometic argued, based on non-binding Eleventh Circuit precedent, that administrative feasibility was a prerequisite for class certification. The district court agreed and denied class certification. Plaintiffs appealed, asking the Eleventh Circuit to clarify that administrative feasibility is not an element of the ascertainability standard and, therefore, not a prerequisite to class certification.

The Eleventh Circuit agreed and reinstated the case. Chief Judge Pryor held that although ascertainability was an “implied prerequisite” of Rule 23(a)’s text, Eleventh Circuit precedent did not “mandate proof of administrative feasibility.” Instead, Chief Judge Pryor held Rule 23’s text contained no administrative feasibility requirement. While no form of the word “ascertainability” appears in Rule 23, Eleventh Circuit precedent requires a court to determine whether a proposed class is “adequately defined and clearly ascertainable” before determining whether the elements of Rule 23 are satisfied. “Unlike traditional ascertainability,” Chief Judge Pryor reasoned, “administrative feasibility does not bear on the ability of a court to consider the enumerated elements of” Rule 23(a) – numerosity of class members, commonality of questions of law or fact, typicality of claims, and adequacy of class representation. In so doing, the Court limited the ascertainability inquiry to whether the class was adequately defined such that its membership is “capable of determination” – without any regard for how feasible it might be to make the determination.

Chief Judge Pryor further held consideration of administrative feasibility was only appropriate in Rule 23(b) classes as part of the manageability criterion of Rule 23(b)(3)(D), which requires courts to consider the difficulty in managing a class action when determining whether a class action would be superior to other available methods for adjudicating a controversy, like mass joinder cases or MDLs. This analysis, however, is only a balancing test determining whether a class will create more problems than it solves. Chief Judge Pryor reasoned that if a class presents “unusually difficult manageability problems,” then the remedy is for the court to require more detail on Plaintiffs’ plan for notifying the class and managing the action. By relegating any administrative feasibility consideration to Rule 23(b)(3)(D)’s manageability analysis, the Court firmly established, [a]dministrative feasibility alone will rarely, if ever, be dispositive.”

For Chief Judge Pryor, the administrative feasibility requirement is a textualism debate about Rule 23’s plain language. For practitioners, it is a real world debate with important implications.  Consider, for example, the trend of lawsuits about disclosures on food containers. While some retailers (for instance, electronic retailers such as Amazon), might have records which identify purchasers, many other retailers will not. How would a plaintiff propose to identify such a class? We shall have to wait to see how courts apply this new test and to see whether the Supreme Court will resolve the split in the Circuits over this standard. For class action practitioners in the Eleventh Circuit, however, this decision is a significant change in the law requiring careful analysis of future actions.