With “Ascertainability” Missing from Rule 23 Draft Reforms, Focus Remains on Courts

uscourtsThe WLF Legal Pulse has devoted a lot of digital ink to the issue of whether the members of a class action must be “ascertainable”—that is, capable of being feasibly identified. Opinions on this implicit class action procedural requirement have varied among the federal circuits and even within specific federal district courts. As an organization that generally favors uniformity, WLF was intrigued by reports that those responsible for making and amending the federal rules of civil procedure had ascertainability on their radar screen for class action rule reform.

The October 30-31, 2014 Agenda Book of the Advisory Committee on Civil Rules dumped cold water on the chances for a rule on ascertainability. The committee discussed the split among federal courts and concluded “in light of the likely difficulty of drafting rule provisions on class definition, the question is whether the problems described warrant making the effort.”

We can’t say we’re surprised, then, that the Advisory Committee’s Rule 23 Subcommittee left ascertainability out of its “draft concept amendments” for the class action rules, which can be read in the April 10-11 Agenda Book (starting on page 243). Considering what fellow legal reform enthusiast Andrew Trask of McGuire Woods LLP wrote on his blog about the Subcommittee’s proposals, perhaps we should be relieved ascertainability wasn’t also included. In any event, for the time being, class action defendants will have to continue fighting a court-by-court battle over this implied requirement.

As we’ve discussed previously, the U.S. Court of Appeals for the Ninth Circuit is poised to offer some clarity on ascertainability in Jones v. ConAgra. District courts in the circuit, especially within the Northern District of California (N.D. Cal., a/k/a The Food Court), have expressed divergent views on whether and how plaintiffs must demonstrate ascertainability.

For instance, in the Jones district court opinion, N.D. Cal. Judge Charles Breyer held that the plaintiffs must offer an objective and feasible method of identifying class members, though their failure to do so was not, by itself, fatal to their motion for class certification. Fellow N.D. Cal. Judge Samuel Conti, however, in Sethavanish v. ZonePerfect Nutrition Co., denied plaintiffs’ class certification motion entirely on the ground that they failed to demonstrate ascertainability.

In contrast, on February 23, 2015 in In re ConAgra Foods, Judge Margaret Morrow of the Middle District of California imposed the type of minimal ascertainability requirement for which the appellants argued (and WLF opposed in its amicus brief) in the Jones appeal. Judge Morrow held that plaintiff’s “objective” declaration of who is in the class—purchasers of Wesson Oil during the class period—was sufficient to put defendants on notice as to who might be claiming damages. Her reasoning to support this low ascertainability bar included the bromide other judges in the Ninth Circuit have used: “ConAgra’s argument would effectively prohibit class actions involving low priced consumer goods.”

Outside of the Ninth Circuit, defendants will find case law that is more supportive of ascertainability. A trio of cases in the Third Circuit (which we’ve addressed before here) offer crystal clear reasoning for a two-pronged test for plaintiffs: 1) a class defined by objective criteria; and 2) a reliable and administratively feasible mechanism for determining whether putative class members fall within the class definition. A January 23, 2015 post by Jim Beck at his Drug and Device Law blog lays out in typically comprehensive detail other circuits’ approaches to ascertainability.

One case decided since that post, in the Southern District of Florida, is Mirabella v. Vital Pharmaceuticals. In a February 27, 2015 opinion, Judge William Zloch ruled that Mr. Mirabella did not offer a mechanism sufficient to identify those who had consumed the supposedly offending Redline Xtreme® Energy Drink during the class period. The consumers were unlikely to have retained their purchase receipts, the judge wrote, and thus the court would have to rely upon their subjective recollection. Judge Zloch also noted that the availability of other, similar Redline® drinks “obfuscates the ability to objectively verify membership in the class.” The detailed class-action identification plan, and its management by an experienced class-action administrator that Mirabella pledged to utilize, did not sway the court. Like Judge Conti in the Northern District of California, Judge Zloch found the lack of ascertainability was enough to deny class certification.

We hope that the Ninth Circuit will confirm an ascertainability requirement for class certification and demand that plaintiffs do more than simply offer an objective definition of class membership to meet that requirement. If, however, the Jones decision places the Ninth Circuit, as it often is, in conflict with other circuits, we will likely join the inevitable chorus calling for U.S. Supreme Court review.

In the meantime, we encourage readers who learn of opportunities to advance ascertainability in other federal courts to let WLF know.

Also published at Forbes.com on WLF’s contributor page.

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