The U.S. Court of Appeals for the Eleventh Circuit recently took on a contentious issue that has divided circuits in their interpretation of Rule 23 for certifying class actions. Its ruling—that Rule 23 does not require a showing of administrative feasibility to identify absent class members as a precondition to class certification—will have a significant impact on class action litigants.
The Eleventh Circuit joined the growing list of circuits to dismantle the heightened “administrative feasibility” requirement read into Rule 23 by various district courts. In Cherry v. Dometic Corp., it clarified that “a proposed class is ascertainable if… its membership is capable of determination,” not “convenient determination,” harmonizing it with interpretations of the Second, Fifth, Sixth, Seventh, Eighth, and Ninth Circuits.
Courts have long recognized that a certified class must be clearly defined based on objective criteria, but some district courts nevertheless invoke a heightened standard requiring plaintiffs to demonstrate an administratively feasible method to identify class members—the so-called ascertainability requirement.
The district court in Cherry had found that this implied requirement precluded class certification because plaintiffs “failed to proffer any evidence that [the defendant’s] records, including [defendant’s] recall efforts, would be useful to identify class members.” (Papasan v. Dometic Corp.) The court further placed the burden on plaintiffs to demonstrate specifically how class members could self-identify.
The Eleventh Circuit rejected these concerns, concluding that the district court conducted the wrong analysis in determining the proposed class was not “ascertainable.” The Eleventh Circuit’s interpretation further underscored the policies of Rule 23. In cases of lower value claims for which inconsistent, minimal, or no records are kept—common subjects for class actions—it would be a nearly insurmountable hurdle to require identification with precision prior to certification. Such a holding would actually reward defendants who keep shoddy records by insulating them from class actions altogether.
As the Eleventh Circuit recognized, concerns over notifying class members and verifying their membership in the class (the district court’s “administrative feasibility” concerns) are distinct inquiries from whether a class is “ascertainable,” and the former cannot serve to bar class certification.
The decision does not require courts to abandon the administrative feasibility inquiry altogether; instead, it cements the inquiry’s proper place in the Rule 23(b)(3) analysis of whether a class action is superior to individual adjudication. The inquiry functions primarily to assist the court in locating class members after certification
Immediate Impact in District Courts
The magnitude of this decision has not gone without notice in district courts where it has had an immediate, positive impact for plaintiffs seeking class certification.
In Scoma Chiropractic P.A. v. Dental Equities LLC, a case involving a proposed class of individuals who received “junk faxes” on their fax machines, allegedly in violation of the Telephone Consumer Protection Act, the district court in Florida reluctantly forced the parties back to the drawing board after the presiding magistrate found plaintiffs’ proposal of identifying class members (recipients of a fax via a stand-alone fax machine) “administratively infeasible.”
In recognizing Cherry “upended” court’s utilization of the administratively feasible test, the court required the parties to “start fresh with new briefing on class certification that addresses certification in the post-Cherry world in which we now live.”
Practitioners can expect similar upheaval in the class certification analysis going forward in the Eleventh Circuit and beyond with the circuit split now weighing heavily in favor of relegating the administrative feasibility inquiry to the 23(b)(3) analysis.
As a result, defendants will be hard pressed to overcome any credible suggestion by plaintiffs that class members can be notified and identified. The Eleventh Circuit’s message in Cherry was clear: administrative hurdles cannot serve as a bar to certification.
In turn, due to Cherry, plaintiffs will be able to take advantage of methods of identification (including self-identification) which had previously been called into question as “problematic” by the overly rigid interpretation of what is sufficiently ascertainable, consistent with the policies underlying the enactment of Rule 23.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Alyssa J. Leary is an attorney at Zimmerman Reed LLP. As a member of the consumer protection and environmental practice groups, she represents plaintiffs in complex litigation involving defective products, consumer fraud, and unfair competition. Her partner, Hart Robinovitch, represents plaintiffs in Cherry v. Dometic Corp.