On February 29, the U.S. Supreme Court denied certiorari review in Mullins v. Direct Digital, LLC, No. 15-1776, an ascertainability case we previously covered when it was decided in the Seventh Circuit. In Mullins, a panel of the Seventh Circuit expressly split from decisions in the Third and Eleventh Circuits and held that a class plaintiff is not required to demonstrate the “administrative feasibility” of ascertaining a class. Instead, the panel applied a weaker standard, holding that ascertainability requires only that a class be “defined clearly and based on objective criteria.” The Sixth Circuit has followed the lead of the Seventh in rejecting another challenge to class certification on ascertainability grounds in Rikos v. Procter & Gamble Co., No. 14-4088 (3d Cir. 2015), a case from which Procter & Gamble filed its own cert. petition in December. That petition remains pending, but with the Supreme Court’s recent refusal to review the Mullins decision, the Circuit split on ascertainability will remain unresolved for now, while the issue continues to percolate in the lower courts.
