Creating a clear circuit split on a class action issue of increasing importance, the Seventh Circuit has rejected the notion that in order to certify a class, a trial court must be able to identify class members in a reliable and administratively feasible way. Most of the court’s opinion in Mullins v. Direct Digital LLC is dedicated to a detailed rebuttal of the Third Circuit’s recent rulings to the contrary.

The product at issue in Mullins, Instaflex, is an over-the-counter supplement to relieve joint discomfort. Plaintiff alleged that advertising for the product was false and misleading, and sued for consumer fraud. The court accepted that defendant’s records were insufficient to identify a large number of retail customers, and that those customers are unlikely to have kept their receipts. In other words, neither party had records that could be used to identify the members of the putative class. Relying on Third Circuit precedent, defendant argued that class certification should have been denied because plaintiff failed to show a “reliable and administratively feasible” way to determine class membership.

The Seventh Circuit rejected defendant’s argument, calling it a “new requirement” that imposes a “heightened” ascertainability standard, effectively barring class actions in cases involving low-cost consumer goods. The Court instead retained what it described as the “weak version” of ascertainability, focused on the adequacy of the class definition itself, and not the difficulty of actually identifying class members. Simply stated, a class is ascertainable as long as it is clearly defined, and membership is based on objective criteria. 

In explaining its reasoning, the Court disagreed sharply with what it described as the “doctrinal drift” of other courts, most notably the Third Circuit. To be clear, the Court agreed with the very real concerns identified by the Third Circuit: administrative convenience, unfairness to absent class members, dilution of the recovery by fraudulent claims, and defendants’ due process rights. But in the Seventh Circuit’s view, those concerns must be balanced against the risk of failing to certify a class in low-dollar consumer cases, where “only a lunatic or a fanatic would litigate the claim individually.” 

At bottom, Mullins is grounded in the concern that a strict ascertainability requirement elevates that element to gatekeeper status, precluding any consideration of the remaining Rule 23 factors until plaintiffs establish that class members can be reasonably identified. According to the Seventh Circuit, at least, the “policy concerns motivating the heightened ascertainability requirements are better addressed by applying carefully the explicit requirements of Rule 23(a) and especially (b)(3).”

Although it gives short shrift to defendants’ due process interests, Mullins presents a focused counterpoint to recent decisions by the Third and Eleventh Circuits, and creates a clear circuit split on the scope of the ascertainability requirement. The Ninth Circuit is poised to weigh in on the issue soon, raising its profile further, and increasing the need for resolution by the U.S. Supreme Court or an amendment to Rule 23.  

Ballard Spahr’s Product Liability and Mass Tort, Class Action Litigation and Consumer Financial Services groups have substantial experience defending class actions and litigating issues of ascertainability.  For more information, please contact Burt M. Rublin at 215.864.8116 or rublin@ballardspahr.com, or Michael R. Carroll at 856.761.3452 or carrollm@ballardspahr.com


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