It just became a little easier to certify a class in one federal circuit. The appeals court held that class representatives are not required to show an administratively feasible way to identify class members as an outright prerequisite to class certification. Instead, a district court should consider administrative feasibility as one factor in a balancing test, according to the appeals court. The ruling deepens a significant divide among the circuits. ABA Litigation Section leaders warn that the division amongst circuits is likely to get worse before it gets better.
The conflict in Cherry v. Dometic Corp. began with refrigerators used in recreational vehicles. The units were designed to operate using a chemical solution that sometimes leaked, creating a fire risk. Potential class representatives moved to certify a class of affected owners under Federal Rule of Civil Procedure 23. The U.S. District Court for the Southern District of Florida denied certification based upon the plaintiffs’ inability to prove the administrative feasibility of locating other class members and dismissed the case for lack of jurisdiction. The district court held that administrative feasibility was part of the ascertainability prerequisite to class certification. The class representatives appealed to the U.S. Court of Appeals for the Eleventh Circuit, requesting review of whether administrative feasibility is a precondition for class certification.
The Eleventh Circuit held “that administrative feasibility is not a requirement for certification under Rule 23.” It further concluded that “[a]dministrative feasibility alone will rarely, if ever, be dispositive, but its significance will depend on the facts of each case.”
First, the appeals court explained that though Rule 23 does not mention ascertainability, it impliedly requires that a proposed class be ascertainable, meaning “adequately defined such that its membership is capable of determination.” It noted that a clear class definition is necessary for a district court to determine whether the putative class satisfies the rule’s enumerated requirements for certification, such as the existence of common facts and law, the numerosity of class members, and the typicality of the claims or defenses of those members.
Next, the Eleventh Circuit concluded a requirement of administrative feasibility could not be implied from the text of Rule 23. It explained that even if the identification of class members was not “convenient,” plaintiffs could still evaluate whether a proposed class meets the elements of commonality, numerosity, and typicality under Rule 23(a).
However, the appeals court did acknowledge that administrative feasibility may be relevant under Rule 23(b)(3)(D), which requires a district court “to consider the likely difficulties in managing a class action” as part of its determination that a class action is superior to other methods of litigation. The Eleventh Circuit noted that this is where administrative feasibility is more appropriately couched because “[a] difficulty in identifying class members is a difficulty in managing a class action.” It further explained that Rule 23(b)(3) requires a balancing test where the manageability of a class is just one of the factors weighed. In the event of “unusually difficult manageability problems,” the appeals court observed that the district court “has discretion to insist on the details of the plaintiff’s plan for notifying the class and managing the action” or to later decertify a class that turns out to be unmanageable.
In so holding, the Eleventh Circuit joins the Second, Sixth, Seventh, Eighth, and Ninth Circuits in rejecting a heightened standard for ascertainability. By contrast, the First, Third, and Fourth Circuits require a showing of the administrative feasibility of a class as part of the implied requirement of ascertainability.
“I think that the court gets it right in saying administrative feasibility is one of several considerations rather than an outright prerequisite to class certification,” says Adam Polk, San Francisco, CA, cochair of the Litigation Section’s Class Action & Derivative Suits Committee. “This court says it is a consideration, not as a part of the rule as a dispositive element, but under a subpart of the rule as a general consideration,” he explains.
Section leaders believe this holding will make class certification easier. “Administrative feasibility is not easy to prove—it is something you need to develop evidence for,” adds Polk. “Therefore, the lack of an administrative feasibility requirement removes an unnecessary impediment to certification,” he concludes. “Class certification is relatively difficult—often times considerable evidence is needed. The days of class certification being a procedural motion are over,” Polk observes.
The holding brings to light other considerations for Section leaders. “Though the case does not discuss it directly, there is an implication that under [ABA Model Rules of Professional Conduct] Rule 3.3, both sides need to be truthful and forthcoming with the court about the issue of administrative feasibility,” says Laura Lin, San Francisco, CA, cochair of the Section’s Ethics & Professionalism Committee. “If there is a way to administer in a feasible fashion, you must be forthright with the court and acknowledge this,” advises Linn.
Section leaders caution there is no end in sight to the divided courts. “This is just an ongoing battle,” recognizes Polk. “The divide among the circuits just keeps getting deeper—it may even get deeper before it gets better,” Polk warns.
