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Ascertainability Requirement for Class Certification

Leveraging the Latest Court Decisions to Challenge Class Membership and Defeat Certification

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific THURSDAY, MARCH 16, 2017

​ Michael A. Iannucci, Esq., Blank Rome, Philadelphia David Kouba, Counsel, Arnold & Porter, Washington, D.C. Nina R. Rose, Counsel, Skadden Arps Slate Meagher & Flom, Washington, D.C.

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Ascertainability Requirement In Class Litigation

March 16, 2017

Michael Iannucci David Kouba Nina Rose

Overview

▪ What is ascertainability? ▪ Using the ascertainability requirement against class action plaintiffs ▪ Ascertainability – recent trends

– Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. Aug. 21, 2013) – Ascertainability after Carrera

▪ EQT Production Co. v. Adair, 764 F.3d 347 (4th Cir. 2014) ▪ Byrd v. Aaron’s Inc., 784 F.3d 154 (3d Cir. 2015) ▪ Karhu v. Vital Pharmaceuticals, Inc., No. 14-11648, 2015 WL 3560722 (11th Cir. June 9, 2015) ▪ Mullins v. Direct Digital, LLC, No. 15-1776, 2015 WL 4546159 (7th Cir. July 28, 2015). ▪ Rikos v. The Proctor & Gamble Co., No. 14-4088, 2015 U.S. App. LEXIS 14613 (6th Cir. Aug. 20, 2015) ▪ Sandusky Wellness Ctr. LLC v. Medfox Sci. Inc., 821 F.3d 992 (8th Cir. 2016)

– Briseno v. ConAgra Foods, Inc., 844 F.3d 1121 (9th Cir. 2017) – Supreme Court may weigh in given Circuit split – Fairness in Class Action Litigation Act pending in Congress

▪ Other ascertainability arguments

– Overbroad classes – “Fail-safe” classes

▪ Summary practice points

6

What Is Ascertainability?

▪ Ascertainability means that the members of a certified class must be sufficiently definite – i.e., that class members can be easily ascertained or determined using objective criteria. ▪ Ascertainability is not explicit in Rule 23.

– Perrine v. Sega of America, Inc., No. 13-cv-01962-JD, 2015 WL 2227846 (N.D. Cal. May 12, 2015) (“In addition to the explicit requirements of Rule 23, an implied prerequisite to class certification is that the class must be sufficiently definite; [and] the party seeking certification must demonstrate that an identifiable and ascertainable class exists.” (internal quotation marks and citation omitted)) – Physicians Healthsource, Inc. v. Alma Lasers, Inc., No. 12 C 4978, 2015 WL 1538497 (N.D. Ill. Mar. 31, 2015) (“While not an explicit requirement under Rule 23, the Seventh Circuit has held that a class definition ‘must be definite enough that the class can be ascertained.’” (internal quotation marks and citation omitted))

7

What Is Ascertainability?

▪ Ascertainability serves three essential purposes at the class certification stage:

– (1) It allows potential class members to identify themselves for purposes of opting out of a class – (2) It ensures that a defendant’s rights are protected by the class action mechanism – (3) It ensures that the parties can identify class members in a manner consistent with the efficiencies of a class action

8

What Is Ascertainability?

▪ Class action defendants have long argued that “ascertainability” is an implicit prerequisite to class certification. ▪ Defendants argue that ascertainability requires plaintiffs to prove that membership in the putative class can be easily determined using

• bjective criteria.

▪ A number of courts have agreed, finding that the ascertainability requirement is critical to ensure manageability and fairness in class- action proceedings. ▪ Courts across the country, however, continue to debate what is necessary to satisfy this requirement.

9

Using The Ascertainability Requirement Against Class Action Plaintiffs

▪Case law addressing ascertainability generally focuses on three problematic types of classes:

–(1) the difficult-to-identify class –(2) the overbroad class –(3) the fail-safe class

10

Using The Ascertainability Requirement: Hard-To-Identify Classes

▪ The most actively litigated ascertainability issues are those that involve the difficult-to-identify class. ▪ These arguments arise when determining membership in the proposed class would be administratively burdensome. ▪ As one MDL court put it: a proposed class must be “sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member.”

– Solo v. Bausch & Lomb Inc., 2009 U.S. Dist. LEXIS 115029, at *13 (D.S.C.

• Sept. 25, 2009).

11

Using The Ascertainability Requirement: Hard-To-Identify Classes

▪ These ascertainability issues can arise where:

– There are no receipts or other documents to enable members to prove they purchased a product or service; – The products are low-value items for which consumers tend to throw away proof of purchase; and/or – The claimant challenges a subset of a product (e.g., food products containing GMO ingredients) and there is no way to tell which consumers received the allegedly non-conforming product.

▪ Class definitions that turn on subjective criteria, such as a class member’s mental state, also fall within the difficult-to-identify category because these definitions make it impractical and administratively burdensome to determine whether an individual is part of the class.

12

Using The Ascertainability Requirement: Hard-To-Identify Classes

▪ For a long time, courts routinely certified low-value claims without concern for ascertainability. ▪ The prevailing view was that “[e]ach individual class member need not be identifiable at the class certification stage.” ▪ Courts rejecting ascertainability arguments in these cases have held that a class is ascertainable as long as class members “can be identified when judgment is rendered.”

– Guadiana, 2010 U.S. Dist. LEXIS 129588, at *12.

13

Ascertainability – Recent Trends

▪ Decisions by the Third, Fourth and Eleventh Circuits have rejected class certification based on a lack of ascertainability where there was no administratively feasible way to identify class members. ▪ By contrast, the Sixth, Seventh, Eighth and Ninth Circuits have rejected the approach taken in these cases and found that ascertainability requires only that the class be identifiable through objective criteria. ▪ District courts in other Circuits have reached conflicting decisions when addressing similar questions concerning ascertainability.

14

Carrera v. Bayer Corp.

▪ Parties stipulated that class members were unlikely to have proof of purchase, such as packaging or receipts. ▪ District court held that “speculative problems with case management” are insufficient to prevent class certification, and the class was certified. Carrera v. Bayer Corp., 2011 WL 5878376, at *4 (D.N.J. Nov. 22, 2011) (quoting Klay v. Humana, Inc., 382 F.3d 1241, 1272–73 (11th Cir. 2004)). ▪ District court further commented that certification was warranted because “the claims involved will be relatively small, and Plaintiff points to methods to verify claims.”

15

Carrera v. Bayer Corp.

• The Third Circuit rejected plaintiff’s two proposed methods for ascertaining

the class. Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. Aug. 21, 2013):

• “[T]he evidence put forth by Carrera is insufficient to show that

retailer records in this case can be used to identify class members.”

• “A defendant has a similar, if not the same, due process right to

challenge the proof used to demonstrate class membership as it does to challenge the elements of a plaintiff’s claim.” ▪ Under Carrera, plaintiff must prove at the class certification stage that the ascertainability standard will be satisfied, and cannot win certification by merely indicating that such evidence will be produced later: ▪ “Depending on the facts of a case, retailer records may be a perfectly acceptable method of proving class membership. But there is no evidence that a single purchaser of WeightSmart could be identified using records of customer membership cards or records of online sales.”

16

Byrd v. Aaron’s Inc.

▪ In Byrd, the Third Circuit did not overrule Carrera but described the ascertainability inquiry as “narrow”. 784 F.3d 154 (3d Cir. 2015)

– Only two requirements: (1) that a class be “defined with reference to objective criteria” and (2) that there is a “reliable and administratively feasible” method for assessing class membership.

▪ The court reasoned that owners and lessees of the company’s computers, as well as the identity of those computers on which spyware had been activated, could be identified objectively through company records.

– This was “a far cry from an unverifiable affidavit, or the absence of any methodology that can be used later to ascertain class members,” which plagued the proposed class in Carrera.

▪ In a concurring opinion, Judge Rendell declared that “[o]ur heightened ascertainability requirement defies clarification. Additionally, it narrows the availability of class actions in a way that the drafters of Rule 23 could not have intended.”

17

City Select Auto Sales v. BMW Bank of N.A.

▪ Third Circuit currently reviewing ascertainability en banc in City Select Auto Sales v. BMW Bank of North America, No. 15-3931 ▪ Plaintiff alleges that car dealers received fax advertisements in violation

• f the TCPA.

▪ Trial court denied certification after concluding there was no objective way to determine which customers received the fax. ▪ After granting review under Rule 23(f), the Third Circuit granted en banc review sua sponte. ▪ Plaintiff raises the following issue on appeal:

– “Should this Court’s “ascertainability” requirement, which has now been expressly rejected by two other circuits and even by Judges of this Court, be reconsidered?” (Pls. Opening Brief at 3).

▪ Case is fully briefed and was argued January 25, 2017

18

Eleventh Circuit Adopts Carrera

▪ Karhu v. Vital Pharmaceuticals, Inc., 2015 WL 3560722 (11th

• Cir. June 9, 2015).

▪ Eleventh Circuit held that plaintiff’s proposal to use the company’s sales data to establish class membership was insufficient because defendant sold primarily to distributors and retailers and records would not identify class members. ▪ “a plaintiff cannot satisfy the ascertainability requirement by proposing that class members self-identify (such as through affidavits) without first establishing that self-identification is administratively feasible and not otherwise problematic” ▪ “[A] defendant’s due-process right against unverified self- identification . . . is also about ensuring finality of judgment.”

19

Fourth Circuit Applies Heightened Ascertainability Requirement

▪ EQT Production Co. v. Adair, 764 F.3d 347 (4th Cir. 2014)

– Plaintiffs alleged that two coalbed methane gas (CBM) producers had unlawfully deprived class members of royalty payments from the production of CBM – District court erred in failing to analyze whether classes asserting CBM

• wnership claims were ascertainable without extensive and

individualized fact-finding

▪ Fourth Circuit held that classes must be administratively feasible

20

Fourth Circuit Applies Heightened Ascertainability Requirement

▪ Fourth Circuit’s reasoning:

– Identifying the proposed ownership classes was fraught with individualized issues surrounding outdated ownership schedules, heirship, intestacy and defects in title – On remand, district court should “give greater consideration to the administrative challenges it will face when using land records to determine current ownership, and assess whether any trial management tools are available to ease this process.” Id. at 359. – “The district court should also determine whether it is possible to adjust the class definitions to avoid or mitigate the administrative challenges we have identified.” Id.

21

Seventh Circuit Disagrees with the Third Circuit’s Approach

▪ Mullins v. Direct Digital, LLC, 795 F.3d 654 (7th Cir. 2015).

– Plaintiffs alleged defendant made fraudulent statements about supplement’s effectiveness in advertising and marketing materials. – District court certified a class, rejecting defendant’s argument that Rule 23(b)(3) implies a heightened ascertainability requirement. – Seventh Circuit affirmed; Rule 23 requires only “that a class must be defined clearly and that membership be defined by objective criteria.” – Court recognized that “[c]lass definitions have failed this requirement when they were too vague or subjective, or when class membership was defined in terms of success on the merits (so-called ‘fail-safe’ classes).” – The proposed class in Mullins did not suffer from those deficiencies.

22

Seventh Circuit Disagrees with the Third Circuit’s Approach

▪ The Mullins court declined to follow the path of the Third Circuit, stating that “[n]othing in Rule 23 mentions or implies this heightened requirement under Rule 23(b)(3).” ▪ A “heightened ascertainability requirement” has 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.”

23

The Sixth and Eighth Circuits Join the Seventh Circuit In Rejecting Carrera

▪ Rikos v. Proctor & Gamble Co., 799 F.3d 497 (6th Cir. 2015).

– “We see no reason to follow Carrera, particularly given the strong criticism it has attracted from other courts.” – Court recognized that determining class membership would require “substantial review” of internal data from the defendant, but that review “could be supplemented through the use of receipts, affidavits, and a special master to review individual claims.”

▪ Sandusky Wellness Ctr. LLC v. Medfox Sci. Inc., 821 F.3d 992 (8th

• Cir. 2016).

– recognizing that other courts have imposed an administrative feasibility requirement, but declining to do so. – declining to recognize a “separate, preliminary” requirement and, instead, “adher[ing] to a rigorous analysis of the Rule 23 requirements”

24

Briseno v. ConAgra Foods: The Ninth Circuit Deepens the Divide

▪ Briseno v. ConAgra Foods, Inc., 844 F.3d 1121 (9th Cir. 2017) ▪ Overview:

– The Briseno plaintiffs sued ConAgra Foods challenging its use of “100% Natural” on the labels of its Wesson-brand cooking oils. – The United States District Court for the Central District of California, granted in part the plaintiffs’ motion to certify 11 statewide classes and ConAgra appealed. – The Ninth Circuit affirmed, holding that class proponents are not required to demonstrate that there is administratively feasible way to determine who is in the class.

25

Briseno v. ConAgra Foods: The Ninth Circuit Deepens the Divide

▪ The District Court’s Decision:

– ConAgra opposed certification on the ground that “there would be no administratively feasible way to identify members of the proposed classes because consumers would not be able to reliably identify themselves as class members” − for example, by producing receipts or

• ther records confirming they bought Wesson oils.

– The district court acknowledged that other courts (namely, the Third Circuit) have refused certification in similar circumstances, but declined to follow that line of cases. – At the certification stage, it was sufficient that the class was defined by objective criterion: consumers who purchased Wesson oil during the class period.

26

Briseno v. ConAgra Foods: The Ninth Circuit Deepens the Divide

▪ Ninth Circuit: Issue on Appeal

– The only issue before the Ninth Circuit was whether a class proponent must proffer an “administratively feasible” way of identifying class members. – The Ninth Circuit “refrain[ed] from referring to ‘ascertainability’ in [its] opinion because courts ascribe widely varied meanings to that term.” – Court noted that it has addressed other “definitional deficiencies” – i.e., overbreadth and vague definitions – through Rule 23’s “enumerated requirements,” including predominance.

27

Briseno v. ConAgra Foods: The Ninth Circuit Deepens the Divide

▪ Ninth Circuit Affirms

– The court held that the “plain language” of Rule 23 does not contain a requirement that determining class membership be administratively feasible. – Instead, Rule 23(a) as contained the “exhaustive list” of general requirements. – “Mindful of the Supreme Court's guidance’ the court “decline[d] to interpose an additional hurdle into the class certification process delineated in the enacted Rule.”

28

Briseno v. ConAgra Foods: The Ninth Circuit Deepens the Divide

▪ Ninth Circuit Rebuts Carrera: Administrative Burdens

– The court also addressed the Third Circuit’s finding Carrera that an “administrative feasibility requirement is the need to mitigate the administrative burdens of trying a Rule 23(b)(3) class action.” – According to the Ninth Circuit, “Rule 23(b)(3) already contains a specific, enumerated mechanism to achieve that goal: the manageability criterion of the superiority requirement.” – “Adopting a freestanding administrative feasibility requirement instead of assessing manageability as one component of the superiority inquiry would also have practical consequences inconsistent with the policies embodied in Rule 23.”

29

Briseno v. ConAgra Foods: The Ninth Circuit Deepens the Divide

▪ Rebutting Carrera: Need for Notice

– The Ninth Circuit also rejected Third Circuit’s finding that administrative feasibility requirement is necessary to ensure notice is possible. – Ninth Circuit held that “[n]either Rule 23 nor the Due Process Clause requires actual notice to each individual class member.”

▪ “Rule 23 requires only the ‘best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.’”

30

Briseno v. ConAgra Foods: The Ninth Circuit Deepens the Divide

▪ Rebutting Carrera: Illegitimate Claims

– The court also rejected the Third Circuit’s concern that individuals will “submit illegitimate claims and thereby dilute the recovery of legitimate claimants.” – According to the Ninth Circuit:

▪ Given the generally low participation rate in consumer classes, “the risk of dilution based on fraudulent or mistaken claims seems low, perhaps to the point of being negligible.’” ▪ “Why would a consumer risk perjury charges and spend the time and effort to submit a false claim for a de minimis monetary recovery?”

31

Briseno v. ConAgra Foods: The Ninth Circuit Deepens the Divide

▪ Rebutting Carrera: Due Process

– Finally, the Ninth Circuit rejected the idea that defendants have a due process right to challenge class membership at the class certification stage.

▪ Defendants can challenge class membership of the class representatives. ▪ If plaintiffs prevail, defendants can challenge the claims of individual class members “if and when they file claims for damages.”

– “Given these existing opportunities to challenge Plaintiffs' case, it is not clear why requiring an administratively feasible way to identify all class members at the certification stage is necessary to protect ConAgra's due process rights.”

32

Briseno v. ConAgra Foods: The Ninth Circuit Deepens the Divide

▪ In summary:

– “[T]he language of Rule 23 neither provides nor implies that demonstrating an administratively feasible way to identify class members is a prerequisite to class certification, and the policy concerns that have motivated the Third Circuit to adopt a separately articulated requirement are already addressed by the Rule.”

▪ On February 21, 2017, ConAgra requested a stay of the Ninth Circuit’s decision pending appeal to the U.S. Supreme Court

33

Two Avenues for Change: Supreme Court Review or Congressional Intervention

▪ Supreme Court Review:

– Briseno presents a prime opportunity for the Supreme Court to intervene on this matter – There is a clear circuit split, with the Third, Fourth and Eleventh Circuits on one side and the Sixth, Seventh, Eighth and Ninth Circuits

• n the other

– Further, the Supreme Court has recently been active in addressing class-certification issues

▪ See, e.g., Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013) ▪ Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) ▪ (Both decisions heightened requirements for class certification)

– It remains to be seen how Supreme Court will come out on ascertainability, but recent decisions tightening requirements for class certification bode well for defendants

34

Two Avenues for Change: Supreme Court Review or Congressional Intervention

▪ Congressional Intervention

– In February, H.R. 985, the Fairness in Class Action Litigation Act of 2017 (FICALA), was voted forward by the House Judiciary Committee (19-12 vote in favor) – FICALA § 1718(a) would codify the “heightened-ascertainability” requirement:

▪ “A Federal court shall not issue an order granting certification of a class action seeking monetary relief unless the class is defined with reference to objective criteria and the party seeking to maintain such a class action affirmatively demonstrates that there is a reliable and administratively feasible mechanism (a) for the court to determine whether putative class members fall within the class definition and (b) for distributing directly to a substantial majority of class members any monetary relief secured for the class.”

▪ FICALA passed the House on March 9, but its fate in the Senate is unclear.

35

Other Ascertainability Arguments: Overbroad Classes

▪ Over the last several years, multiple courts have found that a proposed class that includes all users of a product or service – irrespective of whether the proposed class members suffered any injury or have any complaints about the product or service – is not ascertainable.

– See Harris v. Fisher-Price, Inc., No. 1:13-CV-00076-KOB, 2016 WL 1319696, at *2 (N.D. Ala. Apr. 5, 2016); Moore v. Apple Inc., No. 14-CV- 02269-LHK, 2015 WL 4638293 (N.D. Cal. Aug. 4, 2015); McKinnon v. Dollar Thrifty Automotive Group, Inc., No. CV 12-cv-04457-SC, 2015 WL 4537957 (N.D. Cal. July 27, 2015); Konik v. Time Warner Cable, 2010 U.S. Dist. LEXIS 136923, at *33 (C.D. Cal. Nov. 24, 2010); Davenport v. Interactive Communs. Int’l, 2010 Cal. App. Unpub. LEXIS 6364, at *19- 22 (Cal. Ct. App. Aug. 9, 2010).

36

Other Ascertainability Arguments : Overbroad Classes

▪As some courts have explained, this is because such a class encompasses a substantial number

• f class members who lack standing to recover
• n the asserted claims.

–See, e.g., McDonald v. Corr. Corp. of Am., 2010 U.S. Dist. LEXIS 122674, at *8 (D. Ariz. Nov. 4, 2010).

37

Other Ascertainability Arguments : Overbroad Classes

▪ This argument has been weakened by recent appellate cases rejecting this argument.

– Whirlpool Corp. v. Glazer, 678 F.3d 409 (6th Cir. 2012) (affirmed class certification of consumers alleging mold in washing machines even though 97 percent of class members never complained about any problem with their washers; “[e]ven if some class members have not been injured by the challenged practice, a class may nevertheless be appropriate”)

▪ The Supreme Court passed on an opportunity to intervene in Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1044 (2016)

– The Court noted that “the question whether uninjured class members may recover is one of great importance,” but concluded it was not properly before the Court “because the damages award has not yet been disbursed, nor does the record indicate how it will be disbursed.” It held that Tyson “may raise a challenge to the proposed method of allocation when the case returns to the District Court.”

38

Other Ascertainability Arguments: Fail- Safe Classes

▪ The ascertainability requirement also bars classes in which the named plaintiffs propose a class definition that incorporates a legal conclusion (e.g., all consumers who were wrongfully denied . . . .). ▪ These are known as “fail-safe” classes, which have been rejected by an increasing number of courts.

– Colley v. Procter & Gamble Co., No. 1:16-cv-918, 2016 WL 5791658 (S.D. Ohio Oct. 4, 2016) (fail-safe classes are “prohibited because it would allow putative class members to seek a remedy but not be bound by an adverse judgment—either those 'class members win or, by virtue of losing, they are not in the class' and are not bound.”). – Dixon v. Monterey Financial Services, Inc., No. 15-cv-03298-MMC, 2016 WL 3456680 (N.D. Cal. June 24, 2016) (fail-safe classes are “palpably unfair to the defendant” because “only those potential members who would prevail on this liability issue would be members of the class”) (internal quotation marks and citation omitted) – Ratnayake v. Farmers Insurance Exchange, No. 2:11-cv-01668-APG-CWH, 2015 WL 875432 (D. Nev. Feb. 27, 2015) (the proposed class definitions created “fail-safe” classes because they included only insureds who had received “insufficient discounts under Nevada law”)

39

Other Ascertainability Arguments: Fail- Safe Classes

▪ Fail-safe classes are problematic because they create a situation in which class members are only bound by a judgment that finds the defendant liable.

– See, e.g., Canez v. King Van & Storage, 2010 Cal. App. Unpub. LEXIS 9687, at *7 & n.8 (Cal. Ct. App. Dec. 7, 2010).

▪ If the class is defined as everyone who was wronged by the defendant and the defendant prevails at trial, then it turns out that nobody was in the class to begin with – and thus nobody is bound by the ruling.

– See, e.g., Genenbacher v. CenturyTel Fiber Co. II, 244 F.R.D. 485, 488 (C.D. Ill. 2007) (explaining that fail-safe classes are unfair because the result of resolution of membership question is that class members “win or are not in the class”).

40

Other Ascertainability Arguments: Fail- Safe Classes

▪ Some courts, however, have rejected ascertainability arguments that challenged the “fail-safe” nature of a proposed class

– See, e.g., Rysewyk v. Sears Holdings Corp., No. 15 CV 4519, 2015 WL 9259886 (N.D. Ill. Dec. 18, 2015) (crediting the defendants’ argument that the complaint improperly set forth a fail-safe class, but nonetheless holding that this, alone, was not grounds for striking class

• allegations. Instead, the court viewed the proposed fail-safe class as a

placeholder intended to give notice of the type of class the plaintiffs eventually would seek to certify, rather than a final class definition) – Hicks v. T.L. Cannon Corp., 2014 U.S. Dist. LEXIS 108434, at *71-72 (W.D.N.Y. Aug. 5, 2014) (redefining subclasses to avoid potential fail- safe issues)

41

Summary Practice Points

▪ The ascertainability requirement provides significant leverage in defending consumer-related putative class action lawsuits. ▪ In many small value suits, proposed class members are unlikely to have any proof of membership in the class. ▪ Some Courts skeptical of “affidavits” as a means of proving ascertainability. ▪ Defendants should strongly attack any proposal to identify class members with affidavits or similar methods.

42

Summary Practice Points

▪ While ascertainability is another arrow in defendants’ quiver, it is far from a sure thing. ▪ Some courts have fallen in behind Carrera, while others have not. ▪ Decisions by the Eleventh, Sixth, Seventh, Eighth and Ninth Circuits reflect a divergent approach to ascertainability. ▪ In light of this split, class action practitioners should pay close attention to the Briseno appeal to the Supreme Court as well as the Fairness in Class Action Litigation Act of 2017.

43

Summary Practice Points

▪ Defendants going forward should consider doing the following: ▪ Frame arguments through 23(b)(3) lens – See Mullins, 2015 WL 4546159 ▪ Base arguments on due-process requirements – See Carrera, 727 F.3d at 307; Karhu, 2015 WL 3560722, at *3 ▪ Base arguments on the Rules Enabling Act – See Dukes, 131 S. Ct. at 2561 (rejecting “Trial by Formula” “[b]ecause the Rules Enabling Act forbids interpreting Rule 23 to ‘abridge, enlarge

• r modify any substantive right[]’” (quoting 28 U.S.C. § 2072(b)))

▪ Look for opportunities to make “outside the box” ascertainability arguments:

– Where the class definition turns on actions by the plaintiff (e.g., fulfillment of certain criteria for an application) or exposure to advertisements or other representations.

44

Thank You

▪ Michael Iannucci – iannucci@BlankRome.com ▪ David Kouba – david.kouba@apks.com ▪ Nina Rose – nina.rose@skadden.com

45