Affirming class certification, Seventh Circuit refuses to expand “ascertainability”

We've covered numerous times the rise of a heightened "ascertainability" requirement in the Third Circuit. (See, for instance, here, for a summary and a recent development. Brief summary: ascertainability is the court-developed notion that a class must show an administratively feasible means of identifying class members; the test is particularly strict and plaintiff-unfriendly in the Third Circuit, where reliance on affidavits of the class members themselves has been held to be insufficient.)

Today the Seventh Circuit refused a class-action defendant's invitation to adopt a strict version of ascertainability. The court's reasoning is worth quoting at length (after the jump)…

Nothing in Rule 23 mentions or implies this heightened requirement under Rule 23(b)(3), which has the effect of skewing the balance that district courts must strike when deciding whether to certify classes. The policy concerns motivating the heightened ascertainability requirement are better addressed by applying carefully the explicit requirements of Rule 23(a) and especially (b)(3). These existing requirements already address the balance of interests that Rule 23 is designed to protect. A court must consider “the likely difficulties in managing a class action,” but in doing so it must balance countervailing interests to decide whether a class action “is superior to other available methods for fairly and efficiently adjudicating the controversy.” See Fed. R. Civ. P. 23(b)(3).

The heightened ascertainability requirement upsets this balance. In effect, it gives one factor in the balance absolute priority, with the effect of barring class actions where class treatment is often most needed: in cases involving relatively low-cost goods or services, where consumers are unlikely to have documentary proof of purchase. These are cases where the class device is often essential "to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights." Amchem Products, Inc. v. Windsor, 521 U.S. 591, 617 (1997), quoting Mace v. Van Ru Credit Corp., 109 F.3d 338, 344 (7th Cir. 1997); see also Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 760 (7th Cir. 2014) (reversing denial of class certification: “a class action has to be unwieldy indeed before it can be pronounced an inferior alternative—no matter how massive the fraud or other wrongdoing that will go unpunished if class treatment is denied—to no litigation at all”), quoting Carnegie v. Household Int’l, Inc., 376 F.3d 656, 661 (7th Cir. 2004) (affirming certification of class with millions of members).

Let's hope other circuits follow suit. Meanwhile, read the Seventh Circuit's full opinion in Mullins v. Direct Digital here.

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