The Class Action Ascertainability Requirement

May a damages class be certified if the proponent of certification is unable to show a reliable, administratively feasible way to identify putative class members? Federal circuit courts continue to answer this question in varying ways, with the Eleventh Circuit last week contributing to a deepening division of federal authority on what is required of a proposed class representative in order to demonstrate the existence of an ascertainable Rule 23(b)(3) class. In Cherry v. Dometic, 2021 WL 346121 (11th Cir. Feb. 2, 2021), the court departed from unpublished decisions from other Eleventh Circuit panels and emphatically declined to adopt a requirement imposed by three circuits that plaintiffs show the existence of a reliable and administratively feasible mechanism to identify absent class members as a precondition to class certification. The role of class ascertainability and whether identification of putative class members is administratively feasible present fundamental questions that recur across a range of class actions, especially consumer and securities litigations.

Background

Although Rule 23 does not expressly impose an ascertainability requirement, in order to bridge the “wide gap” between a plaintiff’s claim and “the existence of a class of persons who ha[s] suffered the same injury as the individual,” courts have required plaintiffs to demonstrate the existence of an aggrieved class. A district court cannot determine whether a proposed class satisfies the Rule 23 requirements without a way to identify absent class members. For example, a court cannot determine under Rule 23(a) whether a class is “so numerous that joinder of all members is impracticable,” unless it can first accurately estimate how many members are in the class. Nor can a court determine whether there are “questions of law or fact common to the class,” unless it first determines that the class members are alleged to have suffered the same injury. Accordingly, courts have recognized that an implicit requirement of Rule 23 and due process is that a Rule 23(b)(3) class must be presently ascertainable based on objective criteria that do not require the court to delve into the merits of the claims. There is agreement among courts that no ascertainability requirement applies to class actions seeking only injunctive relief under Rule 23(b)(2); the unitary nature of the remedy available under Rule 23(b)(2), the lack of need to identify class members in order to craft an enforceable remedy focused on the defendant’s conduct, and the absence of a notice and opt-out right make the identities of individual class members less important than in the context of a (b)(3) class.