Ascertainability is an implied prerequisite of Federal Rule of Civil Procedure 23, which governs class actions.1 Class representatives bear the burden of establishing that their proposed class is “adequately defined and clearly ascertainable,” and they must satisfy this requirement before the district court can consider whether the class satisfies the enumerated prerequisites of Rule 23(a).2
Traditionally, a class is “ascertainable” if it is clearly defined by “objective criteria.”3 In 2013, the Third Circuit, in Carrera v. Bayer Corp., applied a heightened standard for ascertainability by holding that a class action plaintiff must also “demonstrate his purported method for ascertaining class members is reliable and administratively feasible.”4 This implied administrative feasibility requires putative class representatives to prove that the identification of class members will be “a manageable process that does not require much, if any, individual factual inquiry.”5
Carrera’s ascertainability standard is controversial, and has created a circuit split. Like the Third Circuit, the First and Fourth Circuits require proof of administrative feasibility as a prerequisite for certification.6 Meanwhile, the Second, Sixth, Seventh, Eighth and Ninth Circuits have rejected that requirement.7 But the Eleventh Circuit applied Carrera in a 2015 unpublished decision – Karhu v. Vital Pharmaceuticals.8 Despite its lack of precedential value, district courts in the Eleventh Circuit have since applied Karhu broadly to preclude class certification in a variety of cases.
The Eleventh Circuit’s Cherry Decision
In Cherry v. Dometic Corp., the Court aligned the Eleventh Circuit with the majority of other circuits that have rejected the heightened ascertainability requirement. Cherry involves allegations of design defects in “gas-absorption refrigerators” manufactured by Dometic Corporation that are typically used in recreational vehicles.9 The putative class representatives – eighteen owners of Dometic refrigerators – alleged that a design defect in the refrigerator’s boiler tubes caused thousands of fires or leaks, and gradually ruined the functionality of the refrigerators.10
Plaintiffs moved to certify a class consisting of “all persons who purchased in selected states certain models of Dometic refrigerators that were built since 1997” – which plaintiffs argued was a sufficiently objective criteria.11 But the district court rejected this argument, and declined to certify the class based on Karhu, finding that plaintiffs had failed to provide evidence that their proposed method of identification would be workable.12
On appeal, the plaintiffs argued that the administrative feasibility requirement is contrary to the plain text of Rule 23, which contains no such requirement. In a 15-page opinion, the Court agreed that administrative feasibility is not a requirement for class certification, either as an element of ascertainability or otherwise.13 The Court acknowledged the split among circuit courts over the proper role of administrative feasibility, but concluded that neither binding precedent in the Eleventh Circuit, nor the text of Rule 23 established administrative feasibility as a requirement for class certification.14 In so holding, the Court retreated to a traditional definition of ascertainability which recognizes simply that “[a] class is ‘clearly ascertainable’ if [the court] is certain its membership is ‘capable of being’ determined,” and explained that “membership can be capable of determination without being capable of convenient determination.”15
The Court did not jettison altogether an analysis of administrative feasibility, however, holding that a court may still consider administrative feasibility – after certification – as part of the manageability criterion of Rule 23(b)(3)(D).16 If there appear to be unusually difficult manageability problems at this step, a district court has discretion to insist on details of plaintiff’s plan for notifying the class, or decertifying the class altogether.17 Even so, the Court made clear that, even when examining administrative difficulties, “administrative feasibility alone will rarely, if ever, be dispositive . . . but its significance will depend on the facts of each case.”18
Practical Takeaway from Cherry
The ultimate impact of Cherry still is unclear. Courts of appeal are divided on whether there must be an administratively feasible way to ascertain class members before the court may certify a class. The Supreme Court has denied certiorari in several cases involving the same issue, but may eventually decide to weigh in.
For the time being, Cherry will encourage significantly more class action filings in the Eleventh Circuit by removing a previously significant impediment to class certification, thus making class certification easier. And, because the administrative feasibility issue remains unresolved in a number of other circuits, this decision will likely have a broader impact in other jurisdictions as well.
1Cherry v. Dometic Corp., No. 19-13242, 2021 WL 346121, at *3 (11th Cir. Feb. 2, 2021)
2Id. at *4.
3Mullins v. Direct Dig., LLC, 795 F.3d 654, 657 (7th Cir. 2015)
4Carrera v. Bayer Corp., 727 F. 3d 300, 307-08 (3d Cir. 2013)
5Cherry, 2021 WL 346121, at *3 (quoting Carrera, 727 F. 3d at 307-08)
8Karhu v. Vital Pharms., Inc., 621 F. App’x 945, 947-48 (11th Cir. 2015)
9Cherry, 2021 WL 346121, at *1.
12Id. at *2.
13Cherry, 2021 WL 346121, at *5.
15Id. at *4.
16Id. at *5.
18Id. at *6.