Another Shot at Ascertainability in Class Certification

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.

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