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Class Action Ascertainability in the Eleventh Circuit: What Makes the Cut?

Ilana Drescher, Lori Lustrin & Melissa Pallett-Vasquez

On March 19, 2020, Magistrate Judge Goodman recommended certifying a Florida class of purchasers of Prevagen, a memory-enhancement product developed by Quincy Bioscience, LLC.[1]  Plaintiffs’ complaint asserts that Quincy violated Florida’s Deceptive and Unfair Trade Practices Act (FDUTPA) by representing to consumers that Prevagen can improve memory function when that “cannot possibly be true as a matter of body chemistry.”

While the Plaintiffs in this case had not yet conducted discovery, they were able to rely on a robust record developed in a similar Prevagen class-action lawsuit against Quincy in California, where the class had been certified and gone to trial.  Quincy is also the current subject of government enforcement actions by the Federal Trade Commission and the New York Attorney General’s Office, and a defendant in four other Prevagen-related class-action lawsuits.

In recommending class certification, Judge Goodman relied on Karhu v. Vital Pharm., Inc.,[2] an unpublished Eleventh Circuit opinion, which holds that “a class is not ascertainable unless the class definition contains objective criteria that allow for class members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.”

In Karhu, the court rejected certification because the plaintiff had not presented any specific proposal as to how the identification of class members would successfully operate. The Eleventh Circuit explained that a plaintiff cannot establish that class members are ascertainable “simply by asserting that class members can be identified using the defendant’s records” or “proposing that class members self-identify (such as through affidavits).”

In this case, unlike in Karhu, the Plaintiffs submitted a 12-point plan for satisfying the ascertainability requirement under the administratively feasible protocol discussed in Karhu.  The proposal was also supported by evidence that it could be successful.

For example, Quincy confirmed that it maintains customer records that include the direct customer’s name, email address, and billing and/or street address. Quincy further confirmed that it collects consumer testimonials on non-direct sales that would also contain customer contact information. Plaintiffs served subpoenas on the four main Prevagen retailers in Florida requesting information about Prevagen purchasers.  Plaintiffs also filed affidavits from retailers like Vitamin Shoppe and Amazon, explaining that they had information from rewards programs to help identify class members. Finally, Judge Goodman noted, while class members would be able to self-identify through proofs of purchase or affidavits, those could be cross-referenced with the other data collected and therefore subjected to fraud-prevention checks.

As Judge Goodman points out, “[h]ad the plaintiff in Karhu taken the steps which the Plaintiffs took here, then he may well have satisfied the ascertainability requirement.”

This is in line with the rulings of several district courts in Florida who have applied Karhu and rejected certification.  See, e.g., Wasser v. All Mkt., Inc., 329 F.R.D. 464, 474 (S.D. Fla. 2018) (class not ascertainable because, inter alia, class proffers no evidence to “establish that the [third party] records are in fact useful for identification purposes” and “the proposal to identify class members by submission of receipts or containers… is unlikely to capture more than a handful of class members.”); Melton v. Century Arms, Inc., No. 16-CV-21008, 2018 WL 6980715, at *6–7 (S.D. Fla. Nov. 28, 2018) (same); Daniel v. Navient Sols., LLC, No. 8:17-CV-2503-T-24JSS, 2019 WL 4671169, at *6 (M.D. Fla. Apr. 26, 2019) (class not ascertainable where Plaintiffs sought to have putative class members “self-identify” as having “received affirmative misrepresentations from [Defendant]”); Sliwa v. Bright House Networks, LLC, 333 F.R.D. 255, 272 (M.D. Fla. 2019) (same).

The Bilzin Sumberg team will continue to monitor the developments of ascertainability standards in the Eleventh Circuit.

[1] See Collins v. Quincy, Case No. 1:19-cv-22864-MGC, ECF No. 119

[2] 621 F. App’x 945, 946 (11th Cir. 2015)

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