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December 12, 2016 Practice Points

Understanding the Latest Trends for Ascertainability and Predominance in Class Certification

By Emily L. Pincow and Elizabeth B. Boggia

As consumers continue to file putative class actions, it has become increasingly important for practitioners to analyze how federal courts interpret the requirements of Federal Rule of Civil Procedure 23 to certify a class. Indeed, with the conclusion of 2016 upon us, it is wise for all practitioners to take particular note of the arguments and legal nuances that have been successful this year in defeating class certification. 

It is well established that before certifying a class, courts must conduct a rigorous analysis of the requirements set forth in Rule 23. To certify a class action, a putative class must satisfy the implicit ascertainability requirement, the requirements listed in Rule 23(a), as well as at least one of the three requirements set forth in Rule 23(b). Under Rule 23(a), every putative class must first meet the prerequisites of numerosity, commonality, typicality, and adequacy of representation. For those seeking monetary relief, the putative class must satisfy the two additional requirements in Rule 23(b)(3): predominance and superiority.

In particular, two of these prerequisites to class certification have proven to be the Achilles’ heel for plaintiff attorneys this year: ascertainability and predominance. While the implicit requirement of ascertainability has been interpreted differently throughout the circuit courts, a class is ascertainable if it is defined by objective criteria and if it is administratively feasible to determine whether a particular individual is a member of the proposed class. Predominance requires that common questions predominate over any questions affecting individual members.

This past September, two federal courts declined to certify proposed consumer class actions for failing to satisfy the ascertainabiity and predominance requirements. First, the Southern District of New York declined to certify a class of Adidas customers who brought suit over the company’s allegedly defective sneakers. See Ruffo v. Adidas Am. Inc., No.15-5989, 2016 WL 4581344 (S.D.N.Y. Sept. 2, 2016). The plaintiff claimed that the SpringBlade sneaker was defectively designed because the sole, designed to function as a spring, peeled off from the bottom of the shoe. With respect to ascertainability, Adidas emphasized, and the court agreed, that the majority of sneakers were sold wholesale by Adidas to various stores and thus, it had no records of the consumers who purchased the sneakers. Turning to predominance, the court found that individualized issues would have to be established for every consumer—for example, that each plaintiff actually relied on Adidas’ advertising and marketing.

Second, the Southern District of California similarly rejected a proposed putative class action based, in part, on the plaintiffs’ inability to satisfy the ascertainability and predominance requirements. See Lucas v. Breg, Inc., et. al., No. 15-cv-00258-BAS-NLS (S.D. Cal. Sept. 30, 2016). The plaintiffs claimed that the company misrepresented the benefits and concealed the risk of injury associated with using its cold therapy device designed for orthopedic patients recovering from surgery. As for ascertainability, the court emphasized that the class was not defined by objective criteria given that it depended on subjective criteria, including each class member’s interaction with their physicians and whether they were exposed to a particular representation. As for predominance, the court concluded that key issues concerning each class member’s exposure to the alleged misrepresentations or omissions and their reliance on the same required individualized inquiries preventing certification.

Other federal courts this year have declined to certify proposed classes on similar grounds. See e.g. Hughes v. The Ester C Co., No. 12-0041, 2016 WL 6092487 (E.D.N.Y. Sept. 30, 2016) (declining to certify a nationwide class of consumers of a vitamin supplement finding that the class was not ascertainable since plaintiffs offered no basis to find that putative class members retained a receipt, the product label, or any other documentation of their purchases); Gonzalez v. Corning, 13-CV-1378, 2016 WL 1252988 (W.D. Pa. Mar. 31, 2016), leave to appeal granted (May 25, 2016) (refusing to certify a class of consumers of roofing shingles concluding that predominance could not be satisfied given the individualized issues in proving a design defect and misrepresentation). These cases are just a few examples of arguments practitioners should be looking to assert in challenging consumer class actions, with an understanding that developing these arguments may necessitate and benefit from discovery.

As we ring in the New Year, practitioners should look back on these decisions and many others, which shed light on the potential vulnerabilities of proposed class actions and can assist defense attorneys in formulating similar strategies that may be fatal to certification.

Emily L. Pincow and Elizabeth B. Boggia are associates with Weil Gotshal & Manges LLP in New York City, New York.

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