There are many avenues defendants may pursue in their attempts to prevent class certification in federal courts, particularly post-Dukes.  One of those avenues is challenging “ascertainability,” the certification factor that has proven to be the Achilles’ heel of some consumer class actions.

Ascertainability refers to the ability, through use of objective criteria, to identify the members of a precisely defined class.  The concept of a clearly ascertainable class seems simple enough, but, as with other class certification factors, it is not so straightforward in practice.  As an initial matter, ascertainability is not mentioned in FRCP 23 as a class certification factor.  It is, instead, an implicit prerequisite recognized by the courts.  And, it is a concept that is closely related to the explicit certification factors because, without ascertainability, a class action would not be “superior to other available methods for fairly and efficiently adjudicating the controversy,” as required by FRCP 23(b)(3).

The onus is on plaintiffs, at the class certification stage, to demonstrate ascertainability.  But, as a federal district court recently observed: “federal courts throughout the United States have taken differing approaches to the substance of the ascertainability requirement for class certification.”  Karhu v. Vital Pharm., Inc., No. 13-60768, 2014 BL 198455, at *3 (S.D. Fla. July 17, 2014).  The likelihood of successfully attacking ascertainability and defeating class certification on that basis, therefore, not only depends on the facts and circumstances surrounding the putative class and its claims, but also depends on the jurisdiction.

To complicate matters further, there have been seemingly inconsistent applications of theascertainability requirement even within the same jurisdiction.  As I reported last month, in the context of two cases in the Northern District of California alleging that food products were mislabeled as “all natural” because they contained synthetic ingredients, one judge, in January, denied class certification because the proposed class was not clearly ascertainable, but another judge, in May, granted class certification.  While the decision granting class certification attempted to draw factual distinctions between the two cases, the court indicated that the opposite outcomes may really stem from differing views as to whatascertainability means in the Ninth Circuit.  See Brazil v. Dole Packaged Foods, LLC, No. 12-CV-01831, slip op. at 10 (N.D. Cal. May 30, 2014) (“Put simply, in the Ninth Circuit there is no requirement that the identity of the class members be known at the time of certification.”).

So, while defendants cannot rely solely on challenges to ascertainability to prevent certification, recent defense victories at the class certification stage are encouraging.  For example, in the Karhu case cited above, the district court refused to certify a class of diet supplement purchasers claiming false advertising because the plaintiff had failed to establish that the proposed class was clearly ascertainable.  See Karhu v. Vital Pharm., Inc., No. 13-60768-CIV, slip op. (S.D. Fla. March 3, 2014).  The court explained that “[a] class is ascertainable if the Court can determine whether a given person is a class member through administratively feasible methods.”  Slip Op. at 5.  Because class members were unlikely to have kept receipts of their purchases and the defendant manufacturer rarely sold its product directly to consumers, the court found that plaintiff had “not suggested any practical means of verifying class membership through existing evidence.”  Id. at 6.  Moreover, the court refused to permit self-identification of class membership by affidavit.  The court reasoned that accepting affidavits of purchases without verification would deprive the defendant manufacturer of its due process right to challenge putative class members’ claims, and that requiring the defendant manufacturer to dispute each affidavit would defeat the whole purpose of the class action device.  Id.  In addition, the court cited concerns that the use of affidavits would invite fraudulent submissions and potentially dilute the recovery of genuine class members.  Id. 

The Karhu court concluded that the ascertainability requirement was not met and denied the motion for class certification.  The plaintiff filed a motion for reconsideration, arguing, among other things, that the court’s ascertainability analysis presented a clear error of law.  In denying the plaintiff’s motion, the court held that while different courts have adopted different approaches to evaluating ascertainability, “[t]he Eleventh Circuit [ ] has held that one aspect of a clearly ascertainable class is that the identification of class members is administratively feasible.”  Karhu v. Vital Pharm., Inc., No. 13-60768, 2014 BL 198455, at *3 (S.D. Fla. July 17, 2014).

While we wait for the circuit courts to clarify ascertainability, manufacturers facing class action lawsuits should look to cases like Karhu for ideas on how to attack the ascertainabilityof a putative class.  After all, anything that may help in the fight against class certification is a welcomed addition to any defendant’s arsenal.