Eleventh Circuit Provides Additional Clarification on Ascertainability, “One of the Most Hotly Contested Issues in Class Action Practice Today”

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On February 2, 2021, the Eleventh Circuit joined the Second, Sixth, Seventh, Eighth, and Ninth Circuits in holding that Rule 23 does not require proof of an administratively feasible method to identify absent class members. In so doing, the court rejected the heightened standard for ascertainability recognized by the First, Third, and Fourth Circuits. Nevertheless, the Eleventh Circuit reiterated that ascertainability—which asks whether a class is adequately defined—remains an implicit requirement of Rule 23. Moreover, while the administrative feasibility of determining class membership will rarely defeat class certification standing alone, it remains a factor for courts to consider when assessing the manageability of a class under Rule 23(b)(3)’s predominance requirement.

  • The defendant, Dometic Corporation, manufactures and sells gas-absorption refrigerators. Dometic initiated limited recalls in 2006 and 2008 after it discovered that some of its refrigerators had a defect that exacerbated the risk of leakage and increased the risk of fire.
  • The Cherry plaintiffs filed suit, alleging that the refrigerator defect was far more widespread than the recall suggested. The 18 putative class representatives sought certification of a class consisting of all persons who purchased certain models of Dometic refrigerators in selected states.
  • The district court denied class certification after concluding that the named plaintiffs failed to demonstrate that ascertaining class members was administratively feasible. The district court relied on an unpublished Eleventh Circuit opinion, Karhu v. Vital Pharms., Inc., 621 F. App’x 945 (11th Cir. 2015), in which the Eleventh Circuit stated that administrative feasibility is an element of the ascertainability requirement. That opinion extensively cited Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013), a Third Circuit decision that led to a resurgence of ascertainability challenges in class litigation.
  • On appeal, the Eleventh Circuit held that the district court abused its discretion by applying an incorrect legal standard to the ascertainability question. It held that, although administrative feasibility is relevant to whether a proposed class may proceed under Rule 23(b)(3), it is not a requirement for class certification. The court thus rejected its prior unpublished opinions that signaled the Circuit would follow the Third Circuit and require proof of administrative feasibility as a prerequisite for certification.
  • Ascertainability, according to the court, is an implied prerequisite of Rule 23, and requires a plaintiff to show that the proposed class is “adequately defined and clearly ascertainable.” But while a class is “clearly ascertainable” if there is certainty that class membership is “capable of being determined,” the court clarified that “membership can be capable of determination without being capable of convenient determination” (emphasis in original).
  • The court noted that “[a]dministrative feasibility does not follow from the text of Rule 23(a)” because it “does not bear on the ability of a district court to consider the enumerated elements of that subsection.” Rather, administrative feasibility speaks to how the district court can locate class members after certification. According to the court, knowledge at the outset about how the class can be identified, confirmed, and managed does not bear on the elements of Rule 23(a). Therefore, “because administrative feasibility has no connection to Rule 23(a),” it has no place in the ascertainability inquiry.
  • Nor does administrative feasibility necessarily follow from Rule 23(b). While the court acknowledged that it is relevant to the superiority and manageability factors of Rule 23(b)(3)(D), administrative difficulties “do not alone doom a motion for certification.” Thus, the court held that while administrative feasibility is to be considered as one factor in analyzing manageability, it is not a per se requirement. So, a district court may consider administrative feasibility in its manageability analysis under Rule 23(b)(3)(D), and a court “has discretion to decertify a certified class that turns out to be unmanageable.”
  • Although the court failed to adopt the most robust form of ascertainability recognized by a minority of circuits, class action defendants should not abandon ascertainability challenges in the Eleventh Circuit. To the contrary, the court reiterated that, before the requirements of Rule 23(a) can be assessed, the court must determine that a class is “adequately defined and clearly ascertainable.” This, in turn, means that the class cannot be defined through “vague or subjective” criteria and its membership must be capable of determination. Although administrative difficulties in determining class membership are not dispositive, they are a factor to be considered in determining whether a class is manageable. Lastly, the significance of that factor “will depend on the facts of the case,” and district courts have discretion to insist on a plaintiff’s plan for notifying the class and managing the action.
  • The Eleventh Circuit’s opinion is available here.

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