On February 2, 2021, the United States Court of Appeals for the Eleventh Circuit issued a significant decision holding that a putative class representative does not need to establish an administratively feasible method to identify absent class members as a pre-requisite for class certification under Federal Rules of Civil Procedure 23 (Rule 23). The case is Cherry v. Dometic Corporation, Case No. 19-13478.
Deepening a circuit split, the Eleventh Circuit joined the Second, Seventh, Eighth, and Ninth Circuits in concluding that administrative feasibility is not a pre-requisite for class certification under Rule 23. By contrast, the First, Third, and Fourth Circuits have held that administrative feasibility is a pre-requisite.
In this putative class action, plaintiffs sought to certify a class of “all persons who purchased in selected states certain models of [defendant’s] refrigerators that were built since 1997.” The United States District Court for the Southern District of Florida denied class certification for failure to prove administrative feasibility, meaning that the class representatives did not explain “how the district court can locate the remainder of the class after certification.”
The class representatives appealed and the Eleventh Circuit reversed. The Eleventh Circuit noted that the process to locate the class is not a requirement under Rule 23(a) and not part of the ascertainability inquiry. The Court also held that administrative feasibility is likewise not a requirement under Rule 23(b). While Rule 23(b)(3)(D) requires the court to “consider the likely difficulties in managing a class action” when deciding whether a class action is superior to other available methods for adjudication, Rule 23(b)(3) “does not permit district courts to make administrative feasibility a requirement.” The Eleventh Circuit concluded that manageability alone will rarely be sufficient to prevent class certification.
This decision is significant for the consumer finance industry as it could lead to an increase of class actions certified in the Eleventh Circuit—which already sees a lot of consumer financial services class actions.
