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Consumer Protection & Privacy

Is Your Putative Consumer Class Ascertainable? The 7th Circuit Suggests It Doesn’t Really Matter at the Certification Stage

 by Amy R. Jonker

Class action plaintiffs have a new reason to file suit in the Seventh Circuit. In Mullins v. Direct Digital, LLC, 795 F.3d 654 (7th Cir. 2015), the Seventh Circuit refused to follow the Third Circuit’s imposition of a heightened “ascertainability” requirement at the class certification stage [subscribers can access an enhanced version of this opinion: | Lexis Advance]. The Seventh Circuit affirmed the district court’s certification of the consumer class and held that the plaintiffs did not have to prove at the class certification stage that there was a “reliable and administratively feasible” way to identify class members.The Seventh Circuit’s ruling contributes to a growing divide among the circuits over how to ascertain a class under Rule 23’s implicit requirement that a class must be defined clearly and that class membership must be defined by objective criteria.

Unlike the explicit class requirements listed in Rules 23(a) and 23(b) of the Federal Rules of Civil Procedure, ascertainability is an implicit prerequisite that courts have extrapolated from Rule 23(a)’s elements and/or Rule 23(c)(1)(B)’s instruction to define the class. See William B. Rubenstein, Newberg on Class Actions § 3:2 (5th ed. 2015). The reasoning is that a court can only apply Rule 23 requirements to a class whose members can be ascertained—put differently, a court needs to know who is a member of the class before it can rule on the Rule 23 requirements or before it can issue an order defining the class. Id.

This raises the question of what test courts should apply to define the class so that it is sufficiently ascertainable. Newberg on Class Actions § 3:3 (5th ed. 2015). While courts have described the test in various ways, it comes down to whether the class can be defined by objective criteria, such as geography, time, and injury suffered. Id. Subjective criteria, such as a class member’s state of mind, fails for lack of definiteness. Id. Once the class is sufficiently defined by objective criteria, the next step determines whether the potential class members can be identified by those objective criteria in an administratively feasible way. In other words, ascertainability speaks to whether there is “a manageable process that does not require much, if any, individual factual inquiry.” Id. It was with this second prong that the Seventh Circuit took issue in Mullins v. Direct Digital, specifically, when the second prong should be applied.

In Mullins, the putative class plaintiff sued a dietary supplement maker for allegedly selling a placebo without any scientific support for its advertising claims that the supplement relieved joint discomfort. The district court certified the putative consumer class who purchased the product. The defendant appealed arguing that the class was unascertainable because the “efficacy of a health product” cannot fulfill the commonality requirement under Rule 23(a)(2).

The Seventh Circuit compared the “weak” version of ascertainability (applicable in the Seventh Circuit) to the “more stringent” version (applicable in the Third Circuit). In the “weak” version, a court examines only the first prong of the ascertainability test at the time it rules on class certification. According to the Seventh Circuit, this means that a court examines the “adequacy of the class definition itself” and not “whether, given an adequate class definition, it would be difficult to identify particular members of the class.”

The “more stringent” version, as applied by the Third Circuit in Marcus v. BMW of North America, LLC, 687 F.3d 583 (3d Cir. 2012) [ | Lexis Advance], and Carrera v. Bayer Corp., 727 F.3d 300, 308 (3d Cir. 2013) [ | Lexis Advance], requires analysis of both prongs at the certification stage—the adequacy of the class definition and the effectiveness of the method for identifying potential class members. In Marcus, the Third Circuit reversed the certification of a poorly defined class and warned that district courts should not approve class identification methods that rely on potential class members’ opinions and affidavits about their inclusion in the class. Other courts have followed the Third Circuit. See, e.g., Karhu v. Vital Pharm., Inc., No. 14-11648, — F. App’x —, 2015 U.S. App. LEXIS 9576, at *8 (11th Cir. June 9, 2015) [ | Lexis Advance].

The Seventh Circuit rejected the Third Circuit’s two-part ascertainability test, explaining that even though the second part of that analysis appears practical, some courts used it to make class certification impossible, especially in cases where a class action is the only feasible way to pursue “valid but small individual claims.” The Court clarified that it holds the purpose of class actions over and above the ability to satisfy class action prerequisites at the certification stage: a “quest for perfect treatment on one issue” should not be “a reason to deny class certification and with it the hope of any effective relief at all.” Essentially, the Seventh Circuit prioritizes superiority over manageability on the theory that superiority effectively balances the costs and benefits of class actions. Mullins, 795 F.3d at 662. 

In analyzing the Third Circuit’s three other reasons for applying the second prong at the class certification stage, the Seventh Circuit rejected the argument that absent class members would not be treated fairly because due process does not require the ability to identify all members at the certification stage. Id. at 662. On the question of whether class members identified only by their own affidavits could result in fraud and unfairly dilute the recovery of legitimate class members, the Seventh Circuit reasoned that the risk of dilution was trivial and would unfairly deny bona fide class members of any recovery based on a fear of lesser recovery. Id. at 667-68. In response to the concern that defendants have a right not to pay in excess of their liability and to present individualized defenses, the Seventh Circuit found that there is no due process right for this and that this concern could be satisfied in post-judgment proceedings. Id. at 671.

Instead, the Seventh Circuit found that the second prong can be addressed by applying the explicit requirements of Rule 23. Those requirements, according to the Seventh Circuit, require courts to balance “the likely difficulties in managing a class action” with whether a class action “is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). Based on this reasoning, the Seventh Circuit concluded that the more stringent version of ascertainability “does not further any interest of Rule 23 that is not already adequately protected by the Rule’s explicit requirements.” Id. at 662. Put another way, requiring that a plaintiff prove the second prong at the time of class certification could unnecessarily bar low-value consumer class actions.

This begs the question of how the Seventh Circuit intends to satisfy the need for efficiency that makes common issues predominate under Rule 23(b)(3). It appears that the Seventh Circuit might intend for this issue to be addressed after class certification on a motion to decertify a class for lack of ascertainability. Id. at 664. How this process will work in conjunction with Rule 23(b)(3)’s requirement to satisfy predominance and superiority is not yet clear.

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