Heightened Ascertainability in Class Actions – Is it Time to Say Goodbye? A 2016
In Mullins v. Direct Digital, LLC, the Seventh Circuit swept away the “heightened ascertainability” requirement for class certification. This requirement, prominently adopted in the U.S. Court of Appeals for the Third Circuit and percolating across various courts including some of the district courts in the Seventh Circuit, mandates a showing of a “reliable and administratively feasible” method to individually identify class members. The Seventh Circuit squarely rejected this heightened requirement in favor of a “weak” ascertainability requirement – namely, that a class must be clearly defined and based on objective criteria – and deepened the circuit split on ascertainability in the process. The U.S. Supreme Court recently chose not to review the Mullins decision.
- Petition for a Writ of Certiorari - Legal Framework
- Identifying Prerequisites to Class Certification
- "Ascertainability" Requirements
- Scope and Limitations
- Recent Developments
Seamus C. Duffy, Partner
Drinker Biddle & Reath LLP
Francis A. Citera, Shareholder
Greenberg Traurig, LLP
- Ascertainability is a judicially created requirement for class certification that is not express in Rule 23. As it has developed in federal courts, ascertainability has commonly been understood to require the class definition to be sufficiently definite and based on objective standards. See Manual for Complex Litigation (Fourth) § 21.222, at 270 (ascertainability requires that the class definition must avoid subjective standards (e.g., a plaintiff’s state of mind) or terms that depend on resolution of the merits (e.g., persons who were discriminated against)).
- The Third Circuit in Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013) adopted what has been described as a heightened ascertainability standard, requiring that whether someone is in the class must be “administratively feasible,” and that a plaintiff does not satisfy the ascertainability requirement “if individualized fact-finding or mini-trials will be required to prove class membership.” In short, “Administrative feasibility means that identifying class members is a manageable process that does not require much, if any, individual factual inquiry.”
- In Mullins v. Direct Digital, LLC, the Seventh Circuit swept away the heightened ascertainability requirement for class certification. The Seventh Circuit in Mullins squarely rejected this heightened requirement in favor of a weak ascertainability requirement – namely, that a class must be clearly defined and based on objective criteria – and deepened the circuit split on ascertainability in the process.
- The Seventh Circuit refuted the policy reasons that the Third Circuit, and courts following it, have provided in support of the heightened requirement, finding instead that the established, and explicit, Rule 23 requirements already sufficiently address these considerations.
Who Should Attend:
- In-House Attorneys
- Class Action Practitioners
- In-House Counsel
- Legal Adviser
- Other related/interested Professionals and Organizations
Francis A. Citera is Co-Chair of the Greenberg Traurig’s Products Liability & Mass Torts Litigation Group and Co-Chair of the Chicago Litigation Practice. Mr. Citera has over 30 years of experience defending purported class actions, toxic tort actions, and other complex litigation in both federal and state courts. He has tried many cases, including an action by the Government to enforce a unilateral administrative order, an allocation case among potentially responsible parties, and a complex product liability, wrongful death case. Mr. Citera has written and spoken extensively on class action litigation, product safety issues and claims for medical monitoring.
Francis A. Citera is Co-Chair of the Greenberg Traurig’s Products Liability & Mass Torts Litigation Group and Co-Chair of the …
Seamus Duffy is a partner with Drinker Biddle & Reath LLP and Chair of its Class Action Team. He is a nationally recognized thought leader on class actions and frequently advises in-house counsel in an array of industries. Seamus defends class actions for companies from virtually all industries and business sectors. He has been an architect of strategies to defeat class certification and has obtained favorable results across the country on a host of claims, including mass tort product liability, unfair competition, consumer protection, breach of contract/warranty claims and emerging risks, regulatory and compliance issues in the privacy arena. He regularly handles multi-state consumer class actions and often serves as national coordinating counsel for companies facing multidistrict and overlapping class action proceedings. He is also a leading appellate advocate on issues related to class certification and consumer protection laws. Additionally, Seamus counsels clients on issues such as state regulatory incursions into the federal domain or assertion of federal preemption of state law claims in asserted class actions. He has represented clients in state and federal court cases across the United States, in federal multidistrict litigation proceedings, and in proceedings before the FCC.
Seamus Duffy is a partner with Drinker Biddle & Reath LLP and Chair of its Class Action Team. He is …
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About Greenberg Traurig, LLP
Greenberg Traurig, LLP is an international law firm with approximately 1900 attorneys and governmental affairs professionals in 38 offices in the United States, Latin America, Europe, Asia, and the Middle East. GT provides integrated, business-focused legal services for clients ranging from Fortune 500 corporations to innovative start-ups. The firm’s multidisciplinary teams include senior lawyers who have served as chief legal officers at major multinational companies and have spent years solving real-world problems in the business, political and legal arenas. GT attorneys are at the forefront of class litigation in federal and state courts throughout the United States, at both the trial and appellate levels. GT’s Class Action Practice brings together more than 70 trial lawyers from across the country with class action experience spanning a wide variety of substantive areas and industries.
About Drinker Biddle & Reath LLP
With 620 lawyers in 12 offices, Drinker Biddle & Reath LLP provides clients with unparalleled legal service in matters ranging from complex class actions to multibillion-dollar deals, across a broad spectrum of industries. They strive not only to assist clients in negotiating complex transactions and resolving high-stakes disputes, but also in anticipating future challenges and opportunities. By combining sound judgment with creative thinking, they help clients achieve their present-day goals and position themselves strategically for future success.
The Class Actions Team is comprised of experienced litigators and regulatory attorneys who defend individual and putative class actions across the country and counsel leading companies on how to adapt their practices in light of the evolving regulatory landscape. Drinker Biddle has also been at the forefront of the fight against class action abuses by testifying to legislatures, pioneering removal strategies, designing and defending dispute-resolution programs and challenging misuses of the class action device. In the past five years alone, the team has defended nearly 200 class actions asserting privacy, consumer protection, wage and hour, antitrust and other claims.