On this blog, we have previously written about the growing split among the federal circuits concerning courts’ approaches to ascertainability. The Third Circuit, in a string of cases within the last five years, adopted a test requiring that class members must be identifiable without extensive and individualized fact-finding or “mini-trials,” and a plaintiff must present evidentiary support to demonstrate that a model it proposes to satisfy Rule 23’s requirements will be effective. The Eleventh Circuit in Karhu v. Vital Pharmaceutical, Inc. similarly found that a plaintiff must establish an administratively feasible method by which class members can be identified.
In Mullins v. Direct Digital, LLC, the Seventh Circuit rejected the Third Circuit’s approach, finding that the Third Circuit’s test was a “heightened” requirement above and beyond Rule 23’s requirements. The Seventh Circuit adopted a more lenient approach and looks only at whether a class can be ascertained by objective criteria, not whether there’s an administratively feasible way to identify class members. This approach operates within Rule 23(b)(3)’s superiority requirement. In Rikos v. Procter & Gamble Co., the Sixth Circuit soon after sided with the Seventh Circuit and in Sandusky Wellness Ctr., LLC v. Medtox Sci., Inc. the Eighth Circuit joined along with the Sixth and Seventh Circuits.
In January 2017, the Ninth Circuit tackled the ascertainability issue in Briseno v. ConAgra Foods, Inc., a consumer class action. The court held that it had never interpreted Rule 23 to require a showing that there is an administratively feasible means of identifying class members, and joined the Sixth, Seventh, and Eighth Circuits in declining to do so. The Court reasoned that Rule 23’s enumerated criteria already address the interests that first motivated the Third Circuit to require administrative feasibility in ascertaining a class. The Ninth Circuit found that “[a]dopting a freestanding administrative feasibility requirement instead of assessing manageability as one component of the superiority inquiry” would have “practical consequences inconsistent with the policies embodied in Rule 23,” such as impeding class actions involving inexpensive consumer goods.
Now with Briseno in the mix, you have on the one hand the strict constructionist view followed by the Sixth, Seventh, Eighth and Ninth Circuits, which have held that administrative feasibility is an extraneous requirement not found in Rule 23. On the other hand, the Third and Eleventh Circuits recognize that in cases involving thousands of potential class members, there must be some protection for the due process rights of defendants who otherwise have no means of challenging plaintiffs’ claims if class members cannot be identified.
The remaining Circuits fall somewhere in between, most having cited to the Third Circuit’s administrative feasibility test but not having actually imposed (or rejected) the same test. In In re Nexium Antitrust Litigation, a divided panel of the First Circuit agreed that a mechanism for ascertaining a class must be administratively feasible, but qualified the Third Circuit’s approach in Carrera v. Bayer by suggesting that consumer testimony in the form of affidavit would be a satisfactory mechanism in that case.
Briseno further widens the circuit split on ascertainability, teeing up a ripe issue for consideration by the Supreme Court. The approach of the Sixth, Seventh, Eighth and Ninth Circuits sets defendants up for expensive and protracted litigation if plaintiffs are able to certify classes regardless of their ability to identify class members, potentially forcing defendants to settle frivolous cases.