The U.S. Court of Appeals for the Seventh Circuit recently refused to impose a heightened “ascertainability” requirement at class certification.

More specifically, the Court held that plaintiffs do not have to prove at the class certification stage that there is a “reliable and administratively feasible” way to identify class members under Federal Rule of Civil Procedure 23(b)(3), and affirmed the district court’s certification of a class of consumers who purchased a dietary supplement falsely advertised as scientifically tested and proven to relieve joint pain.

A copy of the opinion is available at:  Link to Opinion.

The putative class plaintiff sued the maker of a product advertised to relieve joint discomfort, “increase mobility” and “support cartilage repair” because it was “scientifically formulated” and clinically tested for maximum effectiveness.” The plaintiff argued that defendant violated the Illinois state UDAP statute and similar laws in nine other states because “the primary ingredient in the supplement (glucosamine sulfate) is nothing more than a sugar pill and there is no scientific support for these claims.”

The district court granted the plaintiff’s motion to certify a class of consumers who purchased the product “within the applicable statute of limitations of the respective Class States for personal use until the date notice is disseminated.”

The defendant sought leave to appeal under Rule 23(f) on the grounds that the district court “abused its discretion in certifying the class without first finding that the class was ‘ascertainable’” and “erred by concluding that the efficacy of a health product can qualify as a ‘common’ question under rule 23(a)(2).” The Seventh Circuit granted defendant’s petition “primarily to address the developing law of ascertainability, including among district courts within this circuit.”

The Seventh Circuit began by discussing the state of the law in the Seventh Circuit, noting that the “’weak’ version of ascertainability has long been the law in this circuit.”  Under this version, in applying Rule 23’s requirement that a class be clearly defined based on objective criteria, courts focus on the “adequacy of the class definition itself” and are “not focused on whether, given an adequate class definition, it would be difficult to identify particular members of the class.”

The Court then traced the “more stringent version of ascertainability” to the Third Circuit’s decision in Marcus v. BMW of North America, LLC, 687 F.3d 583 (3d Cir. 2012), in which the Third Circuit reversed the certification of a poorly defined class. On remand, the Third Circuit cautioned that if defendants’ records did not identify class members, the district court should not approve a method “relying on ‘potential class members’ say so’” and the “reliance on class members’ affidavits might not be ‘proper or just.’”

The Seventh Circuit explained that “[a]s it stands now, the Third Circuit’s test for ascertainability has two prongs: (1) the class must be ‘defined with reference to objective criteria’ … and (2) there must be ‘a reliable and administratively feasible mechanism for determining whether putative class members fall within the class definition.” It then pointed out, however, that while the second prong seemed “sensible at first glance,” “[i]n practice, however, some courts have used this requirement to erect a nearly insurmountable hurdle at the class certification stage in situations where a class action is the only viable way to pursue valid but small individual claims.”

Rejecting the defendant’s argument that the Court should adopt the Third Circuit’s heightened ascertainability test “because the only method of identifying class members proposed by [plaintiff] in the district court was self-identification by affidavit,” the Court found that the Third Circuit had misapplied the requirements of Rule 23.  The Seventh Circuit then addressed each of the four policy reasons for requiring more than only affidavits from putative class members, finding each unpersuasive.

The Seventh Circuit concluded that “imposing this stringent version of ascertainability does not further any interest of Rule 23 that is not already adequately protected by the Rule’s explicit requirements.” On the other hand, doing so “effectively bars low-value consumer class actions, at least where plaintiffs do not have documentary proof of purchases, and sometimes even when they do.”

Accordingly, the Court held that the district court “did not abuse its discretion by deferring until later in the litigation decisions about more detailed aspects of ascertainability and the management of any claims process. At bottom the district court was correct not to let a quest for perfect treatment on one issue become a reason to deny class certification and with it the hope of any effective relief at all.”