Eleventh Circuit Widens Circuit Split on Ascertainability Issue for Class Certification

Key Points

• Widening the circuit split on “[o]ne of the most hotly contested issues in class action practice today,” the 11th Circuit held that administrative feasibility is not an element of Federal Rule of Civil Procedure 23’s ascertainability requirement or a requirement for class certification. In Cherry v. Dometic Corp., No. 19-13242 (11th Cir. February 2, 2021), the 11th Circuit “limit[s] ascertainability to its traditional scope: a proposed class is ascertainable if it is adequately defined such that its membership is capable of determination.”
• The 11th Circuit explained that while not a requirement, administrative feasibility is still an important consideration regarding the superiority of class treatment and, in particular, the manageability of certain class actions.
• The Court also held that jurisdiction under the Class Action Fairness Act does not depend on class certification.

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Summary

• In Cherry, plaintiffs representing a putative class of owners of allegedly defective refrigerators moved for class certification under Federal Rule of Civil Procedure 23. The class representatives argued that they satisfied Rule 23’s ascertainability requirement because they had an administratively feasible class-member identification method. The defendant refrigerator manufacturer disagreed, arguing that the class representatives failed to satisfy the ascertainability requirement because they provided no evidence that their proposed identification method would be workable. The district court agreed with the manufacturer that the class representatives failed to prove administrative feasibility, and therefore failed to establish ascertainability, and denied class certification. The district court based its decision on an unpublished 11th Circuit opinion that found administrative feasibility to be an element of Rule 23’s ascertainability requirement. As a consequence of denying class certification, the district court dismissed the action because it believed that it lacked subject-matter jurisdiction under the Class Action Fairness Act, its sole basis for jurisdiction, if class certification was denied.
• The 11th Circuit vacated the district court’s dismissal and remanded the matter for further proceedings, finding that the district court erred in denying class certification based on a lack of administrative feasibility.
• Departing from the 1st, 3rd, and 4th Circuits, and joining the 2nd, 6th, 7th, 8th, and 9th Circuits, the 11th Circuit held that administrative feasibility is not a prerequisite for class certification under Rule 23. The Court explained that ascertainability—i.e., whether class membership is “capable of being” determined—is an implied prerequisite of class certification. However, “administrative feasibility is not an inherent aspect of ascertainability” because “membership can be capable of determination without being capable of convenient determination.” The Court concluded that neither circuit precedent nor the text of Rule 23 requires administrative feasibility for class certification. The Court did add that, while administrative feasibility is not a prerequisite for class certification, it is relevant to Rule 23(b)(3)’s balancing test, which instructs district courts to consider class manageability when deciding whether a class action is superior to other methods for fairly and efficiently resolving claims.
• The Court then held that the district court erred when it dismissed the action for lack of subject-matter jurisdiction because “jurisdiction under the Class Action Fairness Act does not depend on [class] certification.” Thus, a district court retains jurisdiction over an action even after it denies certification.

Takeaways

• The 11th Circuit opinion in Cherry underscores the fractured circuit split regarding whether administrative feasibility is required for class certification.
• While the 11th Circuit’s reasoning follows from one reading of Rule 23, it may be on the wrong side of the administrative feasibility issue when faced with the realities of complex class action litigation. The absence of an administrative feasibility requirement at class certification drastically increases the risk that cases will devolve into myriad mini-trials if defendants raise legitimate doubts about who actually qualifies as a class member, thereby negating the efficiencies that Rule 23 is intended to promote.
• Unless and until the United States Supreme Court takes up the issue, parties on both sides of class certification motions must pay close attention to arguments regarding the ascertainability of a proposed class and the interplay of administrative feasibility for identifying proposed class members.
• Even though the 11th Circuit has joined the side of the split holding that administrative feasibility is not a requirement to establish ascertainability of a class, courts still must consider administrative feasibility when determining whether a class action is superior to other methods for adjudicating a controversy.

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