Fighting for Consumer Class Action: Heightened Ascertainability in the Sixth Circuit

Houston Alexander Bragg, KLJ Staff Editor[1]

It may not be long before consumer class actions are obsolete in the Sixth Circuit. Due to a recent Third Circuit opinion heightening the ascertainability requirement implicit in class certification,[2] the federal court system in Tennessee, Kentucky, Ohio, and Michigan could see a major change in the class action landscape.

Within the class action community, it is widely accepted that the class of plaintiffs must be ascertainable, meaning that the class must be “clearly defined referencing objective criteria,”[3] as opposed to classes defined on vague or subjective concepts. In 2013, however, the Third Circuit, in Carrera v. Bayer Corp., departed from the established requirements of ascertainability, holding that Federal Rule of Civil Procedure 23(b)(3) requires a reliable and administratively feasible apparatus for determining whether a supposed class member falls within the class definition, in addition to the accepted criteria of a clear, objectively referenced class definition.[4]

The Third Circuit’s departure from traditional notions of ascertainability met significant resistance from the Seventh Circuit when, in a recent opinion, it directly opposed the heightened-ascertainability requirement.[5] In Mullins v. Direct Digital, LLC, the Seventh Circuit held that heightened ascertainability disrupts the plain language balance of factors in Rule 23 by placing “absolute priority” on administrability; as such, heightened ascertainability in the Third Circuit has barred several certifiable classes from class certification.[6]

The Sixth Circuit Court of Appeals has not explicitly adopted heightened ascertainability, but in a recent discussion of class definitions in Young v. Nationwide Mutual Insurance Company, it did hold that “a class must not only exist, it must be susceptible to precise definition.”[7] While Young has been scrutinized by several courts, it does suggest that the Sixth Circuit is susceptible to a heightened approach to ascertainability.[8]

This would be a mistake. The traditional approach to ascertainability better addresses the consumer class-action concerns expressed by the heightened ascertainability faction “by applying carefully the explicit requirements of Rule 23(a) and (b)(3).”[9] The existing requirements already address the balance of interests that Rule 23 is designed to protect.[10] Heightened ascertainability, on the other hand, skews the balance of interests by placing “absolute priority” on adminstrability, while diluting other factors such as the sufficient adjudication of the controversy.[11] Practically speaking, this bars consumer class actions; i.e., 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.”[12]

Nothing in the text of Rule 23(b)(3) mentions or implies this heightened requirement,[13] and the current rule’s four explicit requirements under Rule 23(a),[14] two supplemental requirements under Rule 23(b)(3),[15] and the implicit traditional ascertainability requirement,[16] when “applied rigorously,”[17] adequately combat class action abuse. Such abuses include the submission of vague classes, classes based on subjective criteria, and fail-safe classes.[18]

The Sixth Circuit should refrain from placing further restrictions on the already defendant-friendly concept of ascertainability. Failure to do so may seriously impair consumer class recovery, and allow class action defendants to operate in a practically unrestricted market.

[1] J.D. expected May 2017.

[2] See Mullins v. Direct Digital, LLC, 795 F.3d 654 (6th Cir. 2015).

[3] Mullins, 795 F.3d at 658-59.

[4] Carrera v. Bayer Corp., 727 F.3d 300, 307-08 (3d Cir. 2013).

[5] See generally Mullins, 795 F.3d at 654.

[6] Id.

[7] Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 537-38 (6th Cir. 2012).

[8] See id.

[9] Mullins, 795 F.3d at 658.

[10] Id.

[11] Id.

[12] Id.

[13] See Fed. R. Civ. P. 23.

[14] See Fed. R. Civ. P 23(a) (Requiring numerosity, commonality, typicality, and adequacy).

[15] See Fed R. Civ. P. 23(b)(3) (requiring predominance and superiority).

[16] See Mullins, 795 F.3d at 658-59.

[17] Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2551-52 (2011).

[18] Mullins, 795 F.3d at 659-61.