Last week, the Ninth Circuit deepened the divide among the Circuits regarding ascertainability in class certification. In Briseno v. ConAgra Foods, Inc., 2017 U.S. App. Lexis 20 (9th Cir. Jan. 3, 2017), the Ninth Circuit rejected the Third Circuit’s line of authority (see Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013) and Byrd v. Aaron’s Inc., 784 F.3d 154 (3d Cir. 2015)) which requires plaintiffs’ counsel to show ascertainability by demonstrating an administratively feasible and reliable method to determine class membership at the class certification stage. The Ninth Circuit concluded that Rule 23 does not explicitly contain such a requirement and further concluded that the ascertainability policy concerns are addressed in the existing Rule 23 requirements: “[w]e likewise conclude that Rule 23’s enumerated criteria already address the interests that motivated the Third Circuit and, therefore, that an independent administrative feasibility requirement is unnecessary.” Briseno, 2017 U.S. App. Lexis 20 at **9-10.
The Ninth Circuit claimed to join the Sixth, Seventh, and Eighth Circuits in declining to adopt ascertainability as a separate prerequisite in class certification and sought to distinguish opinions from the First, Second, and Fourth Circuits in its analysis. While there are clearly differences among the Circuits, the lines of demarcation are not crystal clear. For example, the Ninth Circuit cites to Rikos v. Procter & Gamble Co., 799 F.3d 497 (6th Cir. 2015) for the Sixth Circuit’s rejection of Carrera – but the Sixth Circuit recently cited Carrera positively and wrote: “many courts, including our own, have held that [ascertainability] is an implicit requirement of class certification. In Young, we adopted the ascertainability requirement noting certification necessitated ‘a class description [that is] sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member.’” Cole v. City of Memphis, 2016 U.S. App. Lexis 18564,**23-24 (6th Cir. Oct. 17, 2016) (citing Young v. Nationwide Mut. Ins. Co., 693 F.3d 532 (6th Cir. 2012) and Carrera). Ironically, the Sixth Circuit ultimately ruled that ascertainability is a concern in Rule 23(b)(3) class certification decisions but is not applicable in Rule 23(b)(2) class certification decisions. Cole, 2016 U.S. App. Lexis 18564 at **23-27.
There may be more than two simple lines of ascertainability authority as the Circuits are clearly concerned about class definition and administrative feasibility in Rule 23(b)(3) classes and are struggling to find the appropriate analytical approach - especially in consumer class actions. This struggle makes this issue ripe for Supreme Court review in the near future.
KMK Law articles and blog posts are intended to bring attention to developments in the law and are not intended as legal advice for any particular client or any particular situation. The laws/regulations and interpretations thereof are evolving and subject to change. Although we will attempt to update articles/blog posts for material changes, the article/post may not reflect changes in laws/regulations or guidance issued after the date the article/post was published. Please consult with counsel of your choice regarding any specific questions you may have.
ADVERTISING MATERIAL.
© 2024 Keating Muething & Klekamp PLL. All Rights Reserved
Topics/Tags
Select- Litigation
- Class Action Litigation
- Appellate Law
- Cybersecurity and Privacy Law
- Data Breach
- E-Discovery
- Securities Law
- Coronavirus
- Sixth Circuit
- Supreme Court
- Intellectual Property
- Social Media
- Trademark
- Trademark Litigation
- Initial Coin Offering
- Bet-the-Company Litigation
- E-Discovery Case Law
- Electronic Data Discovery
- Antitrust
- Federal Rules of Civil Procedure
- Employment Law
- ESI
- Workplace Accommodations
- Employer Policies
- Labor & Employment Law
- Labor Law
- Technology
- ERISA
- Stock Drop
- GDPR
- General Data Protection Regulation
- Cryptocurrency
- SEC
- Securities Litigation
- Ascertainability
- Craft Brewing
- Cybersecurity Regulation
- Drug Enforcement Agency
- Medical Marijuana
- Ohio Foreclosure Reform
- Copyright Law
- Environmental Law
- Fair Housing Act
- Health Care Act
- Healthcare Reform
- Pregnancy Discrimination
- Religion Discrimination
- Seventh Circuit
- Accommodation
- Americans with Disabilities Act
- Cyber Insurance
- EEOC
- Electronically Stored Information
- FLSA
- Lenders
- Proportionality
- Receivership Statute
- Telecommuting
- Business Process Improvement
- Employer Handbook
- Employer Rules
- Employment Litigation
- National Labor Relations Act
- National Labor Relations Board
- NLRB
- Unions
- E-Discovery Project Plan
- Evidence
- Predictive Coding
- TAR ( Technology Assisted Review)
- Quality Representation
- Subpoena
- Arbitration
- CAFA
- Land Use & Zoning
- Construction Litigation
- Privacy
- Statute of Limitations
- Taxation
- Federal Rule
Recent Posts
- Agency Deference Loses its Luster Under Ohio Law—Is Interpretation of Administrative Statutes Ohio's Next Legal Hot Topic?
- United States Supreme Court Clarifies Boundaries of Federal Civil Rule 60(b)
- Motion for Reconsideration in an Appeal: Sometimes the Court will Reconsider if you Argue its Initial Decision was Just Wrong
- TransUnion LLC v. Ramirez and the Impact on Class Action Litigation
- Questioning the Questionnaires: New PPP-Related Litigation Raises Issues for Borrowers
- "You Don't Have to Go Home But You Can't Stay Here": Updates to Ohio and Kentucky’s COVID-19 Orders Impacting Bars & Restaurants
- Kentucky Restaurants Begin Opening with Limited Capacity Amid COVID-19 Epidemic
- Ohio Restaurants and Bars Begin Soft Openings for Diners Amid COVID-19 Epidemic
- Supreme Court Sidesteps “Cy Pres” Challenge
- Golfers, New and Old - Be Careful!