Must a court determine whether the individual members of a putative class of plaintiffs are identifiable, or “ascertainable,” before it may certify a class under Federal Rules of Civil Procedure 23(a) and 23(b)(3)? There currently is a federal circuit court split on this question, creating uncertainty for class action litigants across the country. How this issue is resolved, including potentially by Supreme Court review, will have significant implications for antitrust cases, especially those involving low-cost consumer products where class members may not have records of their purchases. In light of the Supreme Court’s recent decisions related to class certification, this author predicts that, if reviewed by the Supreme Court, the Court will endorse a rigorous application of the “ascertainability requirement,” creating yet another hurdle for class action plaintiffs. However, even if that occurs, it will not be the death knell to consumer class actions, as some would have us believe. That is because, with recent technological changes, there is a practical trend toward increased ability to track purchases of low cost products, because of the increase in online sales and the improved consumer data tracking by retailers and credit card companies. As a result, ascertainability may win the day, but its effect will not be to quash consumer class actions.

Ascertainability Defined, and the Evolution of the Circuit Court Split

Ascertainability has been described as an “implicit” “prerequisite” to class action certification under Rules 23(a) and 23(b)(3). Ascertainability requires that the members of a putative class be readily identifiable “based on objective criteria,” without “extensive and individualized fact-finding or ‘minitrials.’” Marcus v. BMW of North America, LLC, 687 F.3d 538, 592-93 (3d Cir.2012); Mullins v. Direct Digital, LLC, 795 F.3d 654, 659 (7th Cir. 2015).

Ascertainability is most frequently challenged in cases involving claims of false advertising or unfair and deceptive practices against manufacturers of low cost products, such as over-the-counter medications, in which the putative class consists of individuals who purchased the products at a retailer, and not directly from the manufacturer. Such individual consumers often lack proof of each purchase he or she made – i.e., it is unlikely that he or she will have kept his or her receipts – and it is therefore difficult, if not impossible, to prove whether, when and how often each putative class member bought the product. The fundamental issue underlying ascertainability in this context is whether a defendant’s due process rights would be violated were a court to certify a class made up of unidentifiable plaintiffs, because a defendant has a right to pursue every defense available to it, including to challenge whether plaintiffs who bring suit against it actually purchased its product(s). A defendant might argue, for example, that if the putative class members cannot demonstrate membership in the class at the certification stage, then certification is inappropriate because the class would potentially contain uninjured members or, at the least, members who could not prove their injury at a later stage in the litigation.

The Third Circuit was the first appellate court to directly address and endorse an ascertainability requirement, in two decisions roughly one year apart, Marcus and Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013). The First, Fourth and Eleventh Circuits were the next to weigh in, appearing to agree with the Third Circuit that ascertainability is a threshold requirement under Rule 23. See, e.g., In re Nexium Antitrust Litig., 777 F.3d 9, 19 (1st Cir. 2015) (“the definition of the class must be ‘definite,’ that is, the standards must allow the class members to be ascertainable”); EQT Production Co. v. Adair, 764 F.3d 347, 358 (4th Cir. 2014) (recognizing that “Rule 23 contains an implicit threshold requirement that the members of a proposed class be ‘readily identifiable’”); Karhu v. Vital Pharma., Inc., No. 14-11648, 2015 WL 3560722, *4 (11th Cir. June 9, 2015) (“Ascertainability, by contrast [to the manageability consideration under Rule 23(b)(3)], addresses whether class members can be identified at all, at least in any administratively feasible (or manageable) way. Put differently, the manageability concern at the heart of the ascertainability requirement is prior to, and hence more fundamental” than that under Rule 23(b)(3).).

However, in July of this year, the Seventh Circuit put an end to this trend with a strong rejection of what it labeled the “heightened” ascertainability requirement for class action certification. Mullins, 795 F.3d at 666. One month later, the Sixth Circuit addressed ascertainability as well, and while not rejecting it all together, declined to follow Carrera. Rikos v. Procter & Gamble Co., 799 F.3d 497, 524-27 (6th Cir. 2015) (“We see no reason to follow [the Third Circuit’s decision in] Carrera, particularly given the strong criticism it has attracted from other courts.”).

A review of these cases demonstrates that Supreme Court review is needed to avoid inconsistent results that are arbitrarily determined by where litigants find themselves in court.

The Third Circuit’s Ringing Endorsement of an Ascertainability Requirement in Carrera

Carrera involved a putative class action against the pharmaceutical company Bayer, in which consumers alleged that Bayer “falsely and deceptively advertised its product One-A-Day WeightSmart” by promoting it as a “multivitamin and dietary supplement that had metabolism-enhancing effects.” 727 F.3d at 304. Retailers purchased WeightSmart from Bayer, and retailers sold the product to consumers. Id. at 303. The parties did not dispute that class members likely would not have kept their receipts each time they purchased WeightSmart, or that Bayer did not have information about who the end purchasers were in its company records or data. Id. Despite this, the plaintiffs argued that there were at least two ways that the class members could be ascertained: “by retailer records of online sales made with store loyalty or rewards cards,” and by affidavits, in which the class members would self-report on the details of their purchases of WeightSmart. Id. at 304. The lower court certified the class and Bayer appealed. On appeal, Bayer argued that certification was not appropriate because: (a) there was “no evidence that any retailer records show who purchased WeightSmart”; and (b) “unverifiable affidavits” would not comply with Rule 23 and would violate Bayer’s due process rights. Id. at 305.

The Third Circuit reversed, endorsing Bayer’s argument that the plaintiffs must be able to prove ascertainability of class members at the certification stage, and that the proposed means of doing so in that case were insufficient under the Rules. In particular, the Court described ascertainability as a “preliminary matter” that needed addressing “before turning to the explicit requirements of Rule 23.” Id. The Third Circuit Court pointed to several benefits of an ascertainability requirement: (1) eliminating “serious administrative burdens that are incongruous with the efficiencies expected in a class action”; (2) facilitating notice to absent class members; and (3) protecting defendants “by ensuring that those persons who will be bound by the final judgment are clearly identifiable.” Id. at 305 (quoting Marcus, 687 F.3d at 593).

The Court held that “[i]f a class cannot be ascertained in an economical and ‘administratively feasible’ manner . . . significant benefits of a class action are lost . . . . Accordingly, a trial court should ensure that class members can be identified ‘without extensive and individualized fact-finding or ‘mini-trials,’ a determination which must be made at the class certification stage.” Id. at 307 (citations omitted).

The Seventh and Sixth Circuits’ Opposing Views

The Seventh Circuit’s decision in Mullins v. Direct Digital LLC, 795 F.3d 654 (7th Cir. 2015) stands in stark contrast to that of the Third Circuit in Carrera. Yet the facts of the case are similar: in Mullins, like in Carrera, the putative plaintiff class alleged consumer fraud by a dietary supplement seller.

The district court certified the plaintiff class, rejecting the argument that Rule 23(b)(3) implies a heightened ascertainability requirement. The Seventh Circuit affirmed the district court’s decision. The significance of the Seventh Circuit’s decision in Mullins is found in its determination that “[n]othing in Rule 23 mentions or implies this heightened [ascertainability] requirement under Rule 23(b)(3).” Id. at 658. The Court noted that the explicit requirements of 23(a) and 23(b)(3) “already address the balance of interests that Rule 23 is designed to protect” and that “the heightened ascertainability requirement upsets this balance.” Id. The Court’s overarching concern was that applying an ascertainability requirement does not materially improve upon the explicit requirements of Rule 23; instead it hinders low-value consumer class actions:

In general, we think imposing this stringent version of ascertainablity does not further any interest of Rule 23 that is not already adequately protected by the Rule’s explicit requirements. On the other side of the balance, the costs of imposing the requirement are substantial. The stringent version of ascertainability effectively bars low-value consumer class actions, at least where plaintiffs do not have documentary proof of purchases, and sometimes when they do.

Id. at 662.

The Court went on to address the primary justifications for an ascertainability determination raised by the Third Circuit in Carrera, in particular, (1) the difficulty of assuring actual notice to absent class members if not all class members are identifiable at the outset, and (2) the possibility of fraudulent claims of inclusion in the class, especially if affidavits are permitted. The Mullins Court rejected each of these concerns in turn.

First, with respect to the actual notice issue, the Court pointed out that actual notice is not required by Rule 23. Instead, the Court said, Rule 23(c)(2)(b) requires the “best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.” Id. at 665; see also id. (Rule 23(c)(2)(b) “does not insist on actual notice to all class members in all cases.”). The Court reasoned that the ascertainability approach “upsets th[at] balance” because “it comes close to insisting on actual notice to protect the interests of absent class members, yet overlooks the reality that without certification, putative class members with valid claims would not recover anything at all.” Id. at 666. The Court suggested that to insist on actual notice would be “let the perfect become the enemy of the good.” Id.

Second, the Court readily dismissed the suggestion that fraudulent claims are a real concern:

[I]n practice, the risk of dilution based on fraudulent or mistaken claims seems low, perhaps 5 to the point of being negligible. We are aware of no empirical evidence that the risk of dilution caused by inaccurate or fraudulent claims in the typical low-value consumer class action is significant. In most cases, the expected recovery is so small that we question whether many people would be willing to sign affidavits under penalty of perjury saying that they purchased the good or service.

Id. at 667. The Court concluded that the concerns raised by the Third Circuit “are better addressed by a careful and balanced application of the Rule 23(a) and (b)(3) requirements . . . .” Id. at 672.

The Sixth Circuit addressed the issue of ascertainability shortly after the Seventh Circuit, and likewise rejected the Third Circuit’s Carrera decision with respect to ascertainability. However, the Sixth Circuit appeared to agree that such a requirement exists, but recognized that it can be met more readily than the Third Circuit acknowledged. Rikos, 799 F.3d at 524-27. In particular, the Sixth Circuit wrote:

. . . Plaintiffs have produced evidence sufficient to show that the class is ascertainable. We see no reason to follow Carrera, particularly given the strong criticism it attracted from other courts. [citing Mullins and two district court decisions] . . . . Even if Carrera governed, there are a number of factual differences that make a finding of ascertainability more appropriate here.

Id. at 525.

The Court in Rikos distinguished its rationale from that of the Third Circuit in Carrera insofar as it rejected the contention that there must 100% accuracy in identifying the class members in order to grant certification, endorsing instead a “reasonable accuracy” metric. Id. Significantly, though, the Court in Rikos distinguished the available evidence there from what had been proposed in Carrera. It pointed out that the defendant’s “own documents indicate that more than half of its sales are online . . . . At a minimum, online sales would provide the names and shipping addresses of those who purchased” the product at issue. In addition, it pointed out that the members of the putative class in Rikos, unlike that in Carrera, “overwhelming[ly]” learned about the product at issue “through their physicians,” and therefore they could verify purchases by “requesting a signed statement from the customer’s physician.” Id. at 527.

Conclusion: Ascertainability May Win the Day, but the Results Will Have Less Impact as Online Purchases Increase and Consumer Data Tracking Improves

On October 26, 2015, Direct Digital, the named plaintiff in the Seventh Circuit’s Mullins decision, filed a petition for a writ of certiorari with the Supreme Court of the United States. The defendant’s response is not due yet, and it will be several months before we learn whether the Supreme Court will grant Direct Digital’s petition for review. In the meantime, the named plaintiff in the Sixth Circuit case, Rikos, may also file a petition for Supreme Court review, based on a stay in that case pending appeal. Dkt. 11-cv-00266, Item No. 146 (Oct. 28, 2015) (“It is ordered that the mandate be stayed to allow appellant time to file a petition for a writ of certiorari, and thereafter until the Supreme Court disposes of the case, but shall promptly issue if the petition is not filed within ninety days from the date of final judgment by this court.”).

Given the circuit court split discussed above, the issue of ascertainability appears ripe for Supreme Court review. Moreover, Supreme Court guidance is needed because, as of now, uncertainty on the issue creates the opportunity for the outcome of class certification – widely recognized as a pivotal stage in any litigation – to vary depending on the venue and jurisdiction of a case. As noted above, this has already led to divergent results on similar facts, and likely would continue to do so in the future.

So, assuming for the moment that the Supreme Court does grant certiorari, the next question is: what will it decide? The Supreme Court’s recent class certification cases, in which it has insisted on a “rigorous analysis” of the requirements of Rule 23, suggest that the Court will endorse a heightened ascertainability requirement as well. Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) (requiring a “rigorous analysis” requirement for FRCP 23(b)(3) class action certification); Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013) (reaffirming the “rigorous analysis” standard).

Many will no doubt criticize that result with claims that consumers have once again come under attack and lost. However, as online purchases and consumer data tracking increase, the defense of ascertainability is likely to lose its punch. In other words, it is only useful to argue that a class cannot be ascertained if that argument holds water in the factual scenario presented in the litigation. If the putative class can show that its members made purchases of the product at issue through retailer or credit card records, they will have less difficulty overcoming even a stringent ascertainability requirement. The Sixth Circuit in Rikos supported this significant practical result. See supra. As a result, the Seventh Circuit’s articulated concern that a stringent ascertainability requirement will sound the death knell of consumer class actions involving low cost consumer products (Mullins, 795 F.3d at 662), while not unfounded, is lessened by other practical, factual considerations.

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This article originally appeared in the American Bar Association’s Section of Antitrust Law, Civil Practice & Procedure Committee’s Young Lawyers Advisory Panel publication, Perspectives in Antitrust, Volume 4, Number 1 in November 2015.