The 11th Circuit earlier this month upheld a district court's rejection of a proposed class action, relying on the ascertainability doctrine. See Karhu v. Vital Pharm., Inc., No. 14-11648, 2015 WL 3560722 (11th Cir. June 9, 2015).

Defendant marketed a dietary supplement called VPX Meltdown Fat Incinerator (“Meltdown”), which it allegedly advertised for fat loss. Plaintiffs brought a proposed class-action suit, alleging that it does not aid fat loss.  Plaintiffs moved to certify a class of nationwide Meltdown purchasers, as well as a subclass of New York purchasers.  The district court denied Karhu's motion, holding that the proposed classes satisfied neither Rule 23's implicit ascertainability requirement, nor the requirements listed in either Rule 23(b)(2) or (3). Plaintiffs appealed, and the court of appeals affirmed without reaching the district court's Rule 23(b)(3) analysis.

Rule 23 implicitly requires that the proposed class is adequately defined and clearly ascertainable. A class is not ascertainable unless the class definition contains objective criteria that allow for class members to be identified in an administratively feasible way. Bussey v. Macon Cnty. Greyhound Park, Inc., 562 F. App'x. 782, 787 (11th Cir.2014). Identifying class members is administratively feasible when it is a “manageable process that does not require much, if any, individual inquiry.” Id. 

Invoking these rules, the district court denied Karhu's motion for class certification, holding that Karhu had failed to establish that his proposed classes were ascertainable. Specifically plaintiffs had failed to propose a realistic method of identifying the individuals who purchased Meltdown. The product was sold primarily to “distributors and retailers,” such that defendant's records could not be used to determine the identities of most class members.The product's low cost meant most class members would not retain their proof of purchase.  The district court also rejected an affidavit-based method. Without verification (discovery), the defendant would be deprived of its due process rights to challenge the claims of each putative class member. On the other hand, allowing defendant to contest each affidavit would require a series of mini-trials to determine class membership, which would not be administratively feasible. 

Plaintiffs appealed.  And as noted the 11th Circuit affirmed.  A plaintiff seeking certification bears the burden of establishing the requirements of Rule 23, including ascertainability.  In order to establish ascertainability, the plaintiff must propose an administratively feasible method by which class members can be identified. See Stalley v. ADS Alliance Data Syst., Inc., 296 F.R.D. 670, 679–80 (M.D.Fla.2013); Hill v. T–Mobile, USA, Inc., No. 2:09–cv–1827–VEM, 2011 WL 10958888, at *10–11 (N.D.Ala. May 16, 2011); see also Carrera v. Bayer Corp., 727 F.3d 300, 306–07 (3d Cir.2013) (“A plaintiff may not merely propose a method of ascertaining a class without any evidentiary support that the method will be successful.”).  A plaintiff cannot establish ascertainability simply by asserting that class members can be identified using the defendant's records; the plaintiff must also establish that the records are in fact useful for identification purposes, and that identification will be administratively feasible. Similarly, a plaintiff cannot satisfy the ascertainability requirement by proposing that class members self-identify (such as through affidavits) without first establishing that self-identification is administratively feasible and not otherwise problematic. See Fisher v. Ciba Specialty Chems. Corp., 238 F.R .D. 273, 301–02 (S.D.Ala.2006); Perez v. Metabolife Int'l, Inc., 218 F.R.D. 262, 269 (S.D.Fla.2003) (holding ascertainability not established when “the only evidence likely to be offered in many instances will be the putative class member's uncorroborated claim that he or she used the product”).

The potential problems with self-identification-based ascertainment are intertwined. On the one hand, allowing class members to self-identify without affording defendants the opportunity to challenge class membership provides inadequate procedural protection to defendants and implicates their due process rights. Perez, 218 F.R.D. at 269; see also Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 594 (3d Cir.2012).  On the other hand, protecting defendants' due process rights by allowing them to challenge each claimant's class membership can be administratively infeasible, because it requires a series of mini-trials just to evaluate the threshold issue of which persons are class members.  

In light of these standards, the district court's ascertainability holding was not an abuse of discretion. Karhu's proposal to identify class members using  “sales data” was incomplete, insofar as Karhu did not explain how the data would aid class-member identification. Nor was any other potential identification procedure obviously workable: the sales data identified mostly third-party retailers, not putative class members. The district court likewise acted within its discretion when it rejected identification via affidavit. Plaintiffs had not established how the potential problems with such a method would be avoided.

Worth noting for our readers is the court of appeals'  explanation of how ascertainability differs from manageability. Ascertainability addresses whether class members can be identified at all, at least in any administratively feasible (ok, manageable) way. But the manageability concern at the heart of the ascertainability requirement is prior to, and hence more fundamental than, the manageability concern addressed in Rule 23b3.