Although not explicitly stated in the text of Rule 23, for several decades courts have held that a putative class must be clearly defined and based on objective criteria as prerequisites to class certification. Courts and commentators alike have referred to this threshold showing as the "ascertainability" requirement without a common understanding of what exactly it means for a class to be ascertainable. During the past few years, however, certain federal courts throughout the country have begun to adopt a more rigid view of Rule 23's implicit ascertainability requirement, which has resulted in the short-circuiting of several class actions at the certification stage. This trend has been most prominent in the Third Circuit, which now requires plaintiffs to prove that there is a "reliable and administratively feasible" way to identify all those who fall within the class definition. See, e.g., Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013).
On July 28, 2015, the Seventh Circuit entered into the fray in Mullins v. Direct Digital, LLC, No. 15-1776, and firmly rejected the Third Circuit's heightened ascertainability requirement for class actions. The Seventh Circuit's decision in Mullins occurred in the context of a consumer fraud class action brought against Direct Digital—the manufacturer of Instaflex Joint Support—which is marketed to consumers as a means to relieve joint discomfort. The district court had granted the plaintiff's motion for class certification, certifying under Rule 23(b)(3) a class composed of consumers "who purchased Instaflex within the applicable statute of limitations in the respective Class States for personal use until the date notice is disseminated." Direct Digital filed a petition for leave to appeal under Rule 23(f) on the grounds that the district court abused its discretion in certifying the class without first finding that the class was "ascertainable." The Seventh Circuit viewed the Rule 23(f) petition as an opportunity "to address the developing law of ascertainability, including among district courts within this circuit" which have recently been split on this question.
In rejecting the Third Circuit's more fact-intensive approach to satisfying ascertainability, the Seventh Circuit sought to place the emphasis solely on the adequacy of the class definition—without reference to whether class members could actually be identified through reliable methods (practically speaking). The Seventh Circuit's narrow conception of ascertainability sought to limit the "unascertainable" classes to three types of situations: (1) classes that are defined too vaguely to satisfy the "clear definition" component; (2) classes that are defined by subjective criteria, i.e., a person's state of mind, so as to fail the objectivity requirement; and (3) so-called "fail-safe" classes in which class membership depends upon prevailing on the merits of the cause of action asserted by the plaintiffs.
According to the Seventh Circuit, courts that properly understood ascertainability "were not focused on whether, given an adequate class definition, it would be difficult to identify particular members of the class." The Seventh Circuit candidly stated that "[t]his 'weak' version of ascertainability has long been the law in this circuit." In declining to depart from precedent, the Seventh Circuit also criticized the Third Circuit's requirement that plaintiffs demonstrate a reliable and administratively feasible method for determining class membership. This stemmed from the Seventh Circuit's fears that such requirement inevitably imposes "a nearly insurmountable hurdle at the class certification stage in situations where a class action is the only viable way to pursue valid but small individual claims." Instead, the Seventh Circuit advocated a more holistic approach that considers the difficulty of administering a class action in the context of Rule 23(b)(3)'s superiority analysis instead of as gatekeeping function under the ascertainability label.
Not surprisingly, based on this rationale the Seventh Circuit affirmed the district court's grant of class certification. The Seventh Circuit found that the proposed class definition was neither vague, nor based on subjective criteria, nor a fail-safe class. The Court even assumed that the only method of identifying class members was by affidavit from putative class members and that many consumers of Instaflex probably did not keep their consumer receipts—factors that likely would have resulted in denial of certification under the reasoning of Third Circuit cases such as Carrera.
As a result of Mullins, defendants' attempts to argue against ascertainability as a way to defeat class certification could be severely hampered in the Seventh Circuit going forward. With the emphasis now focused on the adequacy of the class definition itself, district courts will be less inclined to delve into the factual difficulties of determining whether a class is truly "ascertainable" in the practical sense. It remains to be seen whether Mullins represents the start of a backlash against the Third Circuit's "heightened" ascertainability requirement or just an outlier among the Courts of Appeals—few of which have analyzed the issue in any great depth. Should the Circuit split persist, the Supreme Court may be forced to deal with the question and decide, once and for all, the precise contours of ascertainability.
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