Adam Karhu bought a dietary supplement called VPX Meltdown Fat Incinerator (“Meltdown”) in reliance on advertising by Vital Pharmaceuticals, Inc. (“VPX”) that Meltdown would result in fat loss. Concerned that Meltdown did not in fact result in loss of girth “in all the right places,”1 if at all, Karhu filed a class action suit in the Southern District of Florida alleging that Meltdown’s advertising was false. Karhu’s motion for class certification was denied because he could not show that the class itself could be defined in a precise and manageable way—the base upon which any class action claim is constructed.

Karhu proposed a nationwide class for purchasers of Meltdown and a subclass for New York purchasers. The Southern District denied the motion for class certification because Karhu could not set forth an appropriate method for ascertaining the class. A class is not ascertainable unless the class definition contains objective criteria that allows for class members to be identified in an administratively feasible way.

In his motion for class certification, Karhu proposed that the class members be identified by use of VPX sales data and/or by self-identification by affidavits from prospective class members. As to sales data, VPX sells to retailers and distributors, not to consumers. As such, use of VPX data would not produce an ascertainable class because it would not sufficiently identify consumers who purchased Meltdown from retailers. With respect to self-identification, the Southern District found that Karhu failed to offer a specific proposal as to how such identification would operate and not implicate the problems inherent in such a method. Specifically, VPX’s due process rights and those of the legitimate class would be implicated by accepting any affidavits at face value. Attempts to check the veracity of self-identifying affidavits would result in “mini-trials,” rendering this method of ascertaining the class administratively unfeasible. The Southern District denied the motion for class certification.

Karhu moved the Southern District for reconsideration in which he set forth, for the first time, a three-step process in which the Meltdown class could be certified by the use of VPX sales data. Specifically, Karhu proposed in this motion for reconsideration that he would (1) use the VPX retail data to identify retailers; (2) he would then subpoena the third-party retailers and (3) would use the documents received from the retailers to identify individual consumers. The Southern District found that this “new” method was not based on new evidence. In other words, Karhu could—and should—have employed the method of issuing third-party subpoenas to retailers and determined consumer identity before he moved for class certification. The Southern District denied the motion for reconsideration.

On appeal, the 11th Circuit Court of Appeals affirmed the denial of class certification for lack of asecertainability and the motion for reconsideration. The court held that a defendant’s sales records alone are not a sufficient basis for the plaintiff to establish the ascertainability requirement unless the plaintiff also demonstrates that (1) the sales records are useful for identification purposes and (2) the use of such records is administratively feasible. With respect to self-identification as a means to define the class, the plaintiff proposing self-identification must establish that such a method is administratively feasible and not otherwise problematic.

The 11th Circuit rejected Karhu’s argument that a strict asecrtainability requirement conflicted with Klay v. Humana, Inc., 382 F.3d 1241, 1271-72 (11th Cir. 2004). The 11th Circuit explained Klay stands for the proposition that a concern about case manageability regarding individualized issues of reliance, causation, and damages, should not a priori preclude class certification. However, the manageability concerns addressed in Klay related to concerns a court may face after the class members have been identified. “Ascertainability, by contrast, addresses whether the class members can be identified at all, at least in any administratively feasible (or manageable) way” explained the 11th Circuit. “Put differently,” the 11th Circuit continued, “the manageability concern at the heart of the asecertainiblity requirement is prior to, hence more fundamental than, the manageability concern address inKlay.”

The 11th Circuit affirmed the denial of class certification and the motion for reconsideration.

In his concurring opinion, Judge Martin agreed with the result reached by the majority but cautioned that the holding should be limited to the facts presented here where the plaintiff failed to set forth an appropriate method for determining the class until after his motion for certification was denied. Had Karhu set forth the adequacy of using third-party subpoenas to ascertain members of the class and addressed the concerns inherent in self-identifying affidavits in his motion for class certification, then Judge Martin wrote that Karhu could have adequately argued that the class was ascertainable. Judge Martin cautioned that the holding in this case does not constitute the rejection of affidavits as a legitimate means of class identification in every case.

Adam Karhu v. Vital Pharmaceuticals, Inc. (11th Cir. June 9, 2015).