Administrative Feasibility Not Separate Class Certification Requirement

The Eleventh Circuit aligned itself last week with the majority of circuits in holding that a threshold determination that identifying class members is administratively feasible is not a separate requirement for class certification. The ruling, in the closely-watched case of Cherry v. Dometic Corp., 2021 WL 346121 (11th Cir. Feb. 2, 2021), which attracted numerous amicus briefs, represents a minor victory for the plaintiffs’ class-action bar. The issue before the court was framed in terms of the “ascertainability” requirement for membership in a class action. The specific issue was whether the ascertainability requirement means not only that the members of a class are capable of being determined but also that class membership can be determined without extensive factual inquiry. In an opinion by Chief Judge William Pryor, the court held that Rule 23 imposed no such heightened administrative feasibility requirement but that administrative feasibility may be considered in weighing the manageability criterion for Rule 23(b)(3) classes. In so holding, the court rejected the unpublished opinions of two Eleventh Circuit panels which had held to the contrary, Karhu v. Vital Pharm., Inc., 621 F. App’x 945 (11th Cir. 2015); Bussey v. Macon Cty. Greyhound Park, Inc., 562 F. App’x 782 (11th Cir. 2014).

The court’s opinion tracks the reasoning of the leading opinion rejecting the heightened ascertainability requirement, Mullins v. Direct Digital, LLC,795 F.3d 654 (7th Cir. 2015), which forcefully counters the leading opinion to the contrary, Carrera v. Bayer Corp.,727 F.3d 300 (3d Cir. 2013). Cherry,however, based its reasoning primarily on the text of Rule 23, while Mullins proceeds from the broader policymaking premise that certifying small dollar class actions is a public good, a form of remedy for wrongdoing that may be imposed before any wrongdoing has actually been proven in accord with due process.

Like Mullins, Cherry posited that a class must be adequately defined and clearly ascertainable, based on objective criteria. No court disagrees. Also like Mullins, Cherry rejects any additional requirement that class membership be determinable without extensive individual factual inquiry. Both cases hold that administrative feasibility may be considered in determining whether a proposed class action is superior to other available methods of adjudication, but assume that the problems in identifying class members would not be relevant to determinations of commonality (as reinvigorated by Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011)) or typicality, under Rule 23(a). Like Mullins, Cherry also appears to give short shrift to class members’ core due process rights to notice and opportunity to opt out of the Rule 23(b)(3) class-action. If class members cannot be identified, then adequate notice to them is obviously problematic. Cherry also seems to overestimate the rigor (or lack thereof) with which the superiority requirement has been applied historically in district courts.

Administrative infeasibility, of course, would be relevant as well to Rule 23(b)(3)’s requirement that common issues predominate over individual issues, but that is not directly addressed in the court’s opinion.

The district court in Cherry had refused to certify a Rule 23(b)(3) product liability class involving claims that the defendant’s refrigerators had a defect that posed a fire risk. The proposed class consisted of all persons who purchased the products in selected states since 1997. The district court agreed with the defendant that the plaintiffs failed to show that their proposed method of identification of class members would be workable. The court then dismissed the case on erroneous jurisdictional grounds, based on the denial of class certification, which does not divest a district court of subject-matter jurisdiction under the Class Action Fairness Act. The Eleventh Circuit reversed and remanded for further proceedings consistent with its opinion.

Given that Chief Judge William Pryor authored the decision, it would seem a long shot for en banc rehearing, but the deep circuit split ordinarily would raise the case’s profile for certiorari. The Eleventh Circuit joined the Second, Sixth, Seventh, Eighth and Ninth in rejecting heightened ascertainability. The First, Third and Fourth have adopted the requirement. And an upcoming Supreme Court case could become relevant to how putative classes with unidentifiable class members fare in the future. In TransUnion LLC v. Ramirez, No. 20-297, to be argued on March 30, 2021, the Supreme Court will analyze Rule 23(a)’s typicality requirement in a case involving a class in which few of the members share the named plaintiff’s alleged injury. The case also involves Article III issues concerning standing of unnamed class members, though the Court, most recently in Dukes, has leaned toward deciding class-action controversies on Rule 23 grounds.

Posted by Tom Byrne.

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