Can a plaintiff represent a class without showing that there’s a feasible way to identify the absent class members? In its recent decision in Cherry v. Dometic Corp., the Eleventh Circuit has become the latest circuit to answer that question with a “maybe.” Although the court noted that the “feasibility” of identifying absent class members was relevant to the “superiority” and “manageability” considerations of Rule 23(b)(3), the court rejected the argument that proving that absent class members could be identified in an “administratively feasible” manner was a prerequisite to class certification. In so holding, the court departed from at least three of its own unpublished decisions from the 2010s that previously held that “administrative feasibility” was a part of the “ascertainability” analysis.
Cherry is just the latest case to grapple with Rule 23’s sometimes slippery ascertainability requirement. Although the term does not show up in the text of the rule, it is now well settled that classes must be “ascertainable” to be certified. As the Eleventh Circuit noted in Cherry, the text includes “what is implicit.”
But courts have diverged on precisely what it means to be ascertainable. Most courts agree that, at a minimum, ascertainability requires that the class be defined according to objective, determinable criteria. In other words, membership in the class must be objectively capable of determination. So, no classes of “attractive people” or “nature lovers.”
In a significant minority of circuits, ascertainability also requires a showing that there is an administratively feasible way to identify the absent class members. In other words, the plaintiff has to show that identifying class members is a “manageable process” without much, if any, individual inquiry. This has been the rule in the First, Third, and Fourth Circuits, and, until Cherry, was also the rule in the Eleventh, at least by virtue of unpublished decisions.
The core holding of Cherry is that administrative feasibility is not part of the ascertainability analysis at all, and is not, by itself, a requirement for class certification. The Eleventh Circuit’s reasoning started by looking to its prior reported cases, which had required plaintiffs to prove that their class is “adequately defined and clearly ascertainable.” But the court, for the first time, took a generous approach to what “clearly ascertainable” means: “A class is ‘clearly ascertainable’ if we are certain that its membership is ‘capable of being’ determined.” To emphasize the point, the court continued: “[M]embership can be capable of determination without being capable of convenient determination.” Instead of a part of ascertainability, the Eleventh Circuit views administrative feasibility as a component of the manageability prong of Rule 23(b)(3).
This decision makes class certification easier and makes class litigation more difficult for defendants. If the Eleventh Circuit means that ascertainability is purely a rhetorical exercise to determine whether a class definition is capable of being ascertained, then defining a class could be reduced to a game of words. A needle can be found in a haystack, after all, and the difficulties in doing so could be reduced to mere administrative hurdles.
Doubly confusing is the Eleventh Circuit’s refusal to engage with the practicalities imbedded throughout the text of Rule 23. Indeed, the court was willing to write out the requirement that a class be “adequately defined” as a redundant doublet. But, in Wal-Mart Stores, Inc. v. Dukes, the United States Supreme Court emphasized that interpretation of Rule 23 should focus on practical realities: “What matters to class certification … is not the raising of common ‘questions’—even in droves—but rather, the capacity of a class-wide proceeding to generate common answers apt to drive the resolution of the litigation.” The Cherry opinion lightheartedly dismisses how inconvenient identifying members might be, but somebody must deal with administrative headaches. District courts should be allowed to consider those headaches when determining whether to certify a class in the first place, although we aren’t sure the Eleventh Circuit was saying otherwise.
In fact, two considerations mitigate the effects of Cherry. First, the problems of administrative feasibility do not go away just because those problems are not part of the ascertainability analysis. Those same real and practical problems can be recast as part of commonality, predominance, and superiority — to say nothing of manageability. If class members cannot be found without undue individualized inquiries, the need for those inquiries will affect the whole class analysis. Moreover, district courts are unlikely to exercise their discretion to certify a class when doing so will mire the courts in an unmanageable slop.
Second, we suspect that the Eleventh Circuit had its eye on another practical reality — namely, that very few class actions go to trial and nearly all of them settle if certified. Viewed through the lens of settlement, administrative feasibility falls away completely because manageability is irrelevant to certifying a class for settlement purposes. Thus, while Cherry may make class certification easier for plaintiffs, it certainly makes settlement easier.
We continue to watch the development of ascertainability doctrine closely. Cherry highlights an existing split between the circuits on this issue, and the deepening doctrinal disagreements invite the Supreme Court to bring clarity.
