The U. S. Court of Appeals for the Seventh Circuit recently held that the Federal Rules of Civil Procedure do not impose a heightened ascertainablity requirement for class certification, despite precedent to the contrary elsewhere.  In Mullins v. Direct Digital, LLC, No. 15-1776, 2015 WL 4546159 (7th Cir. Jul. 28, 2015), the Court of Appeals affirmed the court below, which had granted the motion to certify.  The case was a consumer fraud case, brought by a consumer who had purchased a dietary supplement for joints. The plaintiff filed a motion to certify the class of consumers who purchased the supplement for personal use during a certain time period.  After the case was certified under Rule 23(b)(3), the defendant filed an interlocutory appeal, and the Court of Appeals heard the appeal under Federal Rule of Civil Procedure 23(f).  The Court proceeded “to address whether Rule 23(b)(3) imposes a heightened ‘ascertainability’ requirement as the Third Circuit and some district courts have held recently.”  Id., at *1.

The U. S. Court of Appeals for the Seventh Circuit recently held that the Federal Rules of Civil Procedure do not impose a heightened ascertainablity requirement for class certification, despite precedent to the contrary elsewhere.  In Mullins v. Direct Digital, LLC, No. 15-1776, 2015 WL 4546159 (7th Cir. Jul. 28, 2015), the Court of Appeals affirmed the court below, which had granted the motion to certify.  The case was a consumer fraud case, brought by a consumer who had purchased a dietary supplement for joints. The plaintiff filed a motion to certify the class of consumers who purchased the supplement for personal use during a certain time period.  After the case was certified under Rule 23(b)(3), the defendant filed an interlocutory appeal, and the Court of Appeals heard the appeal under Federal Rule of Civil Procedure 23(f).  The Court proceeded “to address whether Rule 23(b)(3) imposes a heightened ‘ascertainability’ requirement as the Third Circuit and some district courts have held recently.”  Id., at *1.

The Court of Appeals noted that a trial court’s ruling on class certification is reviewed under the abuse of discretion standard, citing Harper v. Sheriff of Cook County, 581 F.3d 511, 514 (7th Cir.2009).  The Court stated that an abuse of discretion is likely found when an erroneous view of the law underlies a decision.  E.g., Ervin v. OS Restaurant Services, Inc., 632 F.3d 971, 976 (7th Cir.2011).

The Court explained “ascertainability” at *1:

We and other courts have long recognized an implicit requirement under Rule 23 that a class must be defined clearly and that membership be defined by objective criteria rather than by, for example, a class member’s state of mind. In addressing this requirement, courts have sometimes used the term “ascertainability.” . . . Class definitions have failed this requirement when they were too vague or subjective, or when class membership was defined in terms of success on the merits (so-called “fail-safe” classes).

The Court went on to explain “heightened ascertainability” as raising the bar, and moving beyond the class definition to look at the ease of identifying class members and the validity of claims as part of the “ascertainability” requirement.  The Court did not adopt this approach, stating at *2:

We decline to follow this path and will stick with our settled law. Nothing in Rule 23 mentions or implies this heightened requirement under Rule 23(b)(3), which has the effect of skewing the balance that district courts must strike when deciding whether to certify classes. The policy concerns motivating the heightened ascertainability requirement are better addressed by applying carefully the explicit requirements of Rule 23(a) and especially (b)(3).

The Court found that the policy considerations of interest to the courts that adopted heightened ascertainability, administrative convenience, unfairness to certain class members and due process, did not justify  a new rule.  Other solutions suffice under Rule 23(a) and (b)(3).  The Court reasoned that the necessary balance is upset when heightened ascertainability prioritizes one factor over the others, excluding low dollar cases where one plaintiff is not sufficiently incentivized to proceed individually.

In Mullins, the class definition itself satisfied ascertainablity under settled 7thCircuit law. The Court rejected the appellant’s argument that more should be required, as was the case in the 3rd Circuit.

Turning its attention to commonality, the Court found a common question in whether false or misleading representations were made, irrespective of whether or not the supplement was effective for some class members.  Thus questions of law or fact common to the class members did in fact predominate over questions affecting individual members.

 In short, the Court of Appeals found no abuse of discretion below and affirmed, stating, “This version of ascertainability is well-settled in our circuit, and this class satisfies it.” Id., at *1.