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March 13, 2018 Practice Points

The Heightened Standard of Ascertainability in Class Actions

Strategic implications of filing class action suits in the Third Circuit: Will the Supreme Court clarify the current split on the level of ascertainability required for class certification?

by Andrew J. Ennis and Catherine A. Zollicker

Practitioners should be on the lookout for a Supreme Court decision regarding the ascertainability of class members. Historically, a class is ascertainable if it is clearly defined by “objective criteria.” Mullins v. Direct Dig., LLC, 795 F.3d 654, 657 (7th Cir. 2015). The Third Circuit, however, in Carrera v. Bayer Corp.727 F.3d 300, 308 (3rd Cir. 2013), created a circuit split by holding that a class action plaintiff must also “demonstrate his purported method for ascertaining class members is reliable and administratively feasible.” (emphasis added). This “administratively feasible” requirement has been dubbed the “heightened standard” of ascertainability. Since Carrera, the majority of Circuit Courts have expressly rejected the heightened standard. See, e.g., In re Petrobras Sec., 862 F.3d 250, 265 (2d Cir. 2017) (expressly rejecting the heightened standard); Rikos v. Procter & Gamble Co., 799 F.3d 497, 525 (6th Cir. 2015) (same); Mullins, 795 F.3d at 663 (same); Briseno v. ConAgra Foods, Inc., 844 F.3d 1121, 1127 (9th Cir. 2017) (same); but see In re Nexium Antitrust Litig., 777 F.3d 9, 19 (1st Cir. 2015)Karhu v. Vital Pharms., Inc., 621 Fed. Appx. 945, 947 (11th Cir. 2015).

In rejecting the heightened standard in In re Petrobras Securities, the Second Circuit recently explained that requiring administrative feasibility for ascertaining class members “would upset the careful balance of competing interests codified in the explicit requirements for Rule 23.” 862 F.3d 250, 265 (2d Cir. 2017). On November 1, 2017, the Defendants in Petrobas filed a petition for certiorari on the Second Circuit’s holding. But on January 16, 2018, after the Petrobas parties announced their $2.95 billion class settlement, the Court granted the Petrobas parties’ joint motion to defer consideration of the petition.

Nonetheless, the Petrobas petition for certiorari came in the wake of the Supreme Court’s denial of certiorari in three other cases involving the same issue. Briseno v. ConAgra Foods, Inc., 844 F.3d 1121, 1127 (9th Cir. 2017), cert. denied, 138 S.Ct. 313 (2017); Rikos v. Procter & Gamble Co., 799 F.3d 497, 525 (6th Cir. 2015), cert. denied, 136 S.Ct. 1493 (2016); Mullins v. Direct Dig., LLC, 795 F.3d 654 (7th Cir. 2015), cert. denied, 136 S.Ct. 1161 (2016). In each of these cases, the Circuit Courts rejected the heightened standard of ascertainability and in each of these cases, the Supreme Court rejected certiorari. Id. This pattern suggests the Court may be waiting to grant certiorari in a case applying the heightened standard so that it can evaluate the actual impact of the “heightened standard” on class certification in the Third Circuit.

Class action practitioners should be mindful of the potential heightened ascertainability standard when addressing class certification. Attorneys defending class action claims in the Third Circuit should be aware of the heightened standard and be sure to hold plaintiffs to it. Meanwhile, attorneys representing plaintiffs in class actions should file outside the Third Circuit or expect to provide an administratively feasible method for ascertaining class members. Though Supreme Court guidance on ascertainability is unlikely in Petrobas at this point, all practitioners should look for potential Supreme Court input on the issue in the near future.

Andrew J. Ennis is a shareholder and Catherine A. Zollicker is an associate with Polsinelli PC in Kansas City, Missouri.

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