Mullins v. Direct Dig., Ltd. Liab. Co. - 795 F.3d 654 (7th Cir. 2015)

Rule:

The policy concerns identified by courts that have adopted a heightened ascertainability requirement are better addressed by a careful and balanced application of the Fed. R. Civ. P. 23(a), (b)(3) requirements, keeping in mind under Rule 23(b)(3) that the court must compare the available alternatives to class action litigation. District courts should continue to insist that the class definition satisfy the established meaning of ascertainability by defining classes clearly and with objective criteria. If a class is ascertainable in this sense, courts should not decline certification merely because the plaintiff's proposed method for identifying class members relies on affidavits. If the proposed class presents unusually difficult manageability problems, district courts have discretion to press the plaintiff for details about the plaintiff's plan to identify class members. A plaintiff's failure to address the district court's concerns adequately may well cause the plaintiff to flunk the superiority requirement of Rule 23(b)(3). But in conducting this analysis, the district court should always keep in mind that the superiority standard is comparative and that Rule 23(c), (d) permit creative solutions to the administrative burdens of the class device.

Facts:

Plaintiff Vince Mullins sued defendant Direct Digital, LLC for fraudulently representing that its product, Instaflex Joint Support, relieves joint discomfort. He alleged that statements on the Instaflex labels and marketing materials—"relieve discomfort," "improve flexibility," "increase mobility," "support cartilage repair," "scientifically formulated," and "clinically tested for maximum effectiveness"—are fraudulent because the primary ingredient in the supplement (glucosamine sulfate) is nothing more than a sugar pill and there is no scientific support for these claims. Mullins asserted that Direct Digital is liable for consumer fraud under the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/1 et seq., and similar consumer protection laws in nine other states. Mullins moved to certify a class of consumers "who purchased Instaflex within the applicable statute of limitations of the respective Class States for personal use until the date notice is disseminated." The district court certified the class under Rule 23(b)(3). Direct Digital filed a petition for leave to appeal under Rule 23(f) arguing that the district court abused its discretion in certifying the class without first finding that the class was "ascertainable." Direct Digital also argued that the district court erred by concluding that the efficacy of a health product can qualify as a "common" question under Rule 23(a)(2).

Issue:

Did Rule 23(b)(3) impose a heightened "ascertainability" requirement as the Third Circuit and some district courts have held recently?

Answer:

No.

Conclusion:

The court held that class action certification was proper for a suit alleging consumer fraud in the marketing of a dietary supplement because the class definition met the ascertainability requirements of being clear, objective, and not defined in terms of success on the merits. The superiority requirement of Fed. R. Civ. P. 23(b)(3) was best addressed not by implying a heightened ascertainability requirement, but under a comparative framework looking at both costs and benefits, while recognizing that low-value consumer claims would not be brought individually and that denying certification on manageability grounds should be the last resort. Commonality under Rule 23(a)(2) was shown because the question was not whether individual consumers experienced health benefits, but whether representations as to the product having been clinically tested or scientifically formulated were deceptive.