Deepening a circuit split, a panel of the Eleventh Circuit held on Tuesday that “ascertainability” of class membership – in the sense that identification of class membership is “administratively feasible” – is not a threshold requisite to the successful maintenance of a putative class action.  The court held that a Florida judge erred in dismissing a lawsuit because the named plaintiffs failed to prove the “administrative feasibility” of identifying would-be class members. The case, Cherry et al. v. Dometic Corp., Case No. 19-13242 (11^th Cir. 2021), represents a potentially-significant shift in the landscape of class certification requirements in the Eleventh Circuit.

It is well established that class actions may proceed only if plaintiffs show that the case satisfies the requirements of Federal Rule of Civil Procedure 23(a): numerosity, commonality, typicality, and adequacy of representation. Many courts have read an additional gloss on Rule 23, however, concluding that the “ascertainability” – that is, whether class members can be identified by objective measures – is an inherent aspect of a class action.  The seminal precedent on the subject is the Third Circuit’s decision in Carrera v. Bayer Corp., 727 F.3d 300 (2013).

The Courts of Appeals have not been uniform in their approach, however; the First and Fourth Circuits join the Third Circuit in considering the issue in terms of ascertainability, and in applying a heightened standard of administrative feasibility.  The Second, Sixth, Seventh, Eighth and Ninth Circuits have rejected that approach. Previously, the Eleventh Circuit had followed the Third Circuit’s heightened standard, though only in unpublished (and thus nonbinding) decisions.

The three-judge panel held that administrative feasibility is not an “inherent aspect” of ascertainability, and is not supported by the text of Rule 23(a). Following this decision, a proposed class will be deemed ascertainable “if it is adequately defined such that its membership is capable of determination,” even if such determination occurs post-certification.

The panel noted, however, that its determination is not the death knell of ascertainability, as district courts must still consider Rule 23(b)(3), which contains a “superiority” requirement that looks, in part, at whether a class action would be “manageable.”

In consequence, it remains to be seen whether the Eleventh Circuit’s ruling represents a major shift in favor of the maintenance of class actions, or merely a shift in the terrain of battle.  It may, however, limit the utility of efforts to dispose of class actions early in the case (for example, through a motion to dismiss or a pre-discovery motion to strike class action allegations). At a minimum, then, this decision portends increased cost and uncertainty for companies facing putative class claims.  At worst, Cherry v. Dometic could lead to costly and inefficient proceedings that devolve into a series of “mini-trials” to determine whether an individual is or is not part of a class.

In any event, class action lawyers in Florida, Alabama, and Georgia – and elsewhere, for that matter – can expect ongoing debate over the effect of this decision (at least unless or until the Supreme Court steps in to resolve this circuit split). KMCL’s class action defense attorneys will closely track developments on the issue and welcome any questions and concerns.

Written by Paul K. Stockman, Alan J. Truitt, and Jacqueline O. Eisermann