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Ascertainability Requirement in Class Litigation: Lessons From Byrd v. Aarons and Carrera v. Bayer Corp.

Strategies for Challenging Class Membership and Defeating Certification

Today’s faculty features:

THURSDAY, SEPTEMBER 17, 2015

David Kouba, Counsel, Arnold & Porter, Washington, D.C. Nina R. Rose, Counsel, Skadden Arps, Washington, D.C.

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Ascertainability Requirement In Class Litigation

September 17, 2015 David Kouba and Nina Rose

Overview

▪ What is ascertainability? ▪ Using the ascertainability requirement against class action plaintiffs

– Overbroad classes – “Fail-safe” classes – Hard-to-identify classes

▪ Ascertainability – recent trends

– Carrera – 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) – Supreme Court likely to weigh in soon in light of Circuit split

▪ 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:

– It allows potential class members to identify themselves for purposes of opting out of a class. – It ensures that a defendant’s rights are protected by the class action mechanism. – 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

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

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

10

Using The Ascertainability Requirement: 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 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); Oshana v. Coca-Cola Co., 472 F.3d 506, 513-14 (7th
• Cir. 2006); Davenport v. Interactive Communs. Int’l, 2010 Cal. App.
• Unpub. LEXIS 6364, at *19-22 (Cal. Ct. App. Aug. 9, 2010).

11

Using The Ascertainability Requirement : Overbroad Classes

▪As some courts have explained, this is so because such a class encompasses a substantial number of class members who lack standing to recover on the asserted claims.

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

12

Using The Ascertainability Requirement : 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; “Even if some class members have not been injured by the challenged practice, a class may nevertheless be appropriate”)

▪ This argument could also be affected by the U.S. Supreme Court’s decision in Tyson Foods, Inc. v. Bouaphakeo

– Question presented includes “(2) whether a class action may be certified or maintained under Rule 23(b)(3), or a collective action certified or maintained under the Fair Labor Standards Act, when the class contains hundreds of members who were not injured and have no legal right to any damages.”

13

Using The Ascertainability Requirement : 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.

– 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”) – Alhassid v. Bank of America, N.A., No. 14-CIV-20484, 2015 WL 4606760 (S.D.

• Fla. July 31, 2015) (holding that the nine class definitions proposed by the

plaintiffs were impermissibly fail safe because membership in the class would be dependent on whether the company violated HUD guidelines or the company’s internal policies) – Agostino v. Quest Diagnostics Inc., 256 F.R.D. 437, 479 (D.N.J. 2009) (“A court must reject a proposed class or subclass definition that ‘inextricably intertwines identification of class members with liability determinations.’”)

14

Using The Ascertainability Requirement : 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 *7-8 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”).

15

Using The Ascertainability Requirement : Fail-Safe Classes

▪ An increasing number of federal and state courts have rejected fail-safe definitions, recognizing that they “turn[] Rule 23 on its head.”

– See, e.g., Ratnayake v. Farmers Insurance Exchange, No. 2:11-cv-01668-APG- CWH, 2015 WL 875432 (D. Nev. Feb. 27, 2015) – Alhassid v. Bank of America, N.A., No. 14-CIV-20484, 2015 WL 4606760 (S.D.

• Fla. July 31, 2015)

– Heffelfinger v. Elec. Data Sys. Corp., 2008 U.S. Dist. LEXIS 5296, at *42 (C.D.

• Cal. Jan. 7, 2008)

– Kirts v. Green Bullion Fin. Servs., LLC, 2010 U.S. Dist. LEXIS 92381 (S.D. Fla. Aug. 3, 2010) – Eversole v. EMC Mortgage Corp., No 05-124-KSF, 2007 U.S. Dist. LEXIS 38892, at *15 (E.D. Ky. May 29, 2007); – Bostick v. St. Jude Med., Inc., 2004 WL 3313614, at *15-16 (W.D. Tenn. Aug. 17, 2004)

16

Using The Ascertainability Requirement : Fail-Safe Classes

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

– See, e.g., LaBerenz v. Am. Family Mut. Ins. Co., 181 P.3d 328, 336 (Colo.

• App. 2007) (holding that the “‘fail-safe’ concept is inapplicable here”

because “the proposed class is not framed as a legal conclusion, but in more neutral terms as insureds whose non-PPO, PIP-related medical services were paid under Explanation Code 41 and health care providers whose medical bills were reduced under Explanation Code 41”). – 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).

17

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).

18

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.

19

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.

20

Ascertainability – Recent Trends

▪ Recent decisions, including rulings 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 and Seventh 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.

21

Carrera v. Bayer Corp.

▪ Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. Aug. 21, 2013) – Gabriel Carrera claimed Bayer falsely and deceptively advertised its product One-A-Day WeightSmart, which was promoted as a multivitamin that had metabolism- enhancing effects. – Bayer never sold WeightSmart directly to consumers, and thus maintained no list of consumers. – The parties also stipulated that class members were unlikely to have proof of purchase, such as packaging or receipts.

22

Carrera v. Bayer Corp.

▪ Trial 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)).

▪ Trial court further commented that certification was warranted because “the claims involved will be relatively small, and Plaintiff points to methods to verify claims.”

23

Carrera v. Bayer Corp.

▪The Third Circuit rejected plaintiff’s two proposed methods for ascertaining the class: –“[F]irst, by retailer records of online sales and sales made with store loyalty or rewards cards.”

▪ “[T]he evidence put forth by Carrera is insufficient to show that retailer records in this case can be used to identify class members.” ▪No evidence that a single purchaser of WeightSmart could be identified.

24

Carrera v. Bayer Corp.

–“Second, by affidavits of class members, attesting they purchased WeightSmart and stating the amount they purchased.”

▪DUE PROCESS RIGHT: “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.” ▪Significant likelihood that class members’ recoveries will be diluted by fraudulent claims.

25

Carrera v. Bayer Corp.

▪ 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.”

▪ 727 F.3d at 308.

– Mr. Carrera did not offer ample evidence that affidavits would be reliable.

26

Byrd v. Aaron

▪ The Third Circuit revisited ascertainability and Carrera in Byrd v. Aaron’s, Inc., 784 F.3d 154 (3d Cir. 2015) ▪ Third Circuit reversed denial of class certification in action brought by lessees of computers from a rent-to-own store. ▪ Plaintiffs alleged violation of the Electronic Communications Privacy Act, invasion of privacy, conspiracy, and aiding and abetting for installing and using software on leased computers allowing remote and surreptitious access and transmission of electronic communications and images. ▪ On appeal, the Third Circuit held that the district court had erred in finding that the proposed classes were not ascertainable.

27

Does Byrd v. Aaron’s Limit Carrera?

▪ In Byrd, the Court of Appeals deemed ascertainability inquiry to be a “narrow”

• ne.

– 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.

– Carrera did not compel a different outcome. – Plaintiffs had offered “multiple definitions of class members and simply argued that a form similar to those provided could be used to identify household members” – 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.

28

Does Byrd v. Aaron’s Limit Carrera?

▪ In a notable 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.” ▪ On the one hand, Judge Rendell’s concurring opinion strongly suggests that the Third Circuit still maintains a “heightened ascertainability” requirement. ▪ On the other hand, the more “narrow” approach employed in Byrd suggests that the Third Circuit has softened its treatment of this implied prerequisite to class certification.

29

Eleventh Circuit Applies Carrera, Giving Teeth To Ascertainability Requirement

▪ Karhu v. Vital Pharmaceuticals, Inc., No. 14-11648, 2015 WL 3560722 (11th Cir. June 9, 2015).

– Plaintiff sought to certify a class of purchasers of a purportedly deceptively advertised dietary supplement – Eleventh Circuit agreed with lower court 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, meaning that the records would not identify class members. – Eleventh Circuit further held that “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”

30

Eleventh Circuit Applies Carrera, Giving Teeth To Ascertainability Requirement

▪ The Karhu court based its decision in part on defendants’ due process right:

– rejected plaintiff’s argument that “defendants have no due-process right against unverified self-identification when total liability will be established at trial, and will not change depending on the number of claims actually made.” – concluded that Plaintiff’s argument was unpersuasive because “a defendant’s due-process right against unverified self-identification . . . is also about ensuring finality of judgment.”

▪ Court also relied on Carrera in reaching its decision.

31

Fourth Circuit Applies Heightened Ascertainability Requirement

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

– Plaintiffs alleged that two coalbed methane (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

32

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.

33

District Courts Have Applied EQT Products

▪ Piotrowski v. Wells Fargo Bank, NA, No. DKC 11-3758, 2015 WL 4602591 (D. Md. July 29, 2015)

– Lawsuit alleging that Wells Fargo had violated the Equal Credit Opportunity Act (ECOA), which requires creditors to notify applicants

• f action taken on a “completed application for credit” within 30 days

and to notify an applicant if an application is incomplete – Identifying borrowers whose loan modification applications were “complete” “would require fact-intensive, individualized inquiries on a loan by loan basis.” – Relied heavily on Fourth Circuit’s decision in EQT Prod., suggesting that ruling marked a major change in ascertainability law in Fourth Circuit

34

Seventh Circuit Disagrees with the Third Circuit’s Approach

▪ Mullins v. Direct Digital, LLC, No. 15-1776, 2015 WL 4546159 (7th

• Cir. July 28, 2015).

– Plaintiffs alleged that 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.

35

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.” ▪ Given clear circuit split between “strong” and “weak” versions of ascertainability, Supreme Court may soon have to weigh in on this important requirement

36

Sixth Circuit Joins Seventh Circuit In Rejecting Carrera

▪ Rikos v. The Proctor & Gamble Co., No. 14-4088, 2015 U.S. App. LEXIS 14613 (6th Cir. Aug. 20, 2015).

– Court of Appeals affirmed certification of a class of California, Illinois, Florida, New Hampshire, and North Carolina purchasers of a particular brand of probiotics. – Class was objective and membership could be determined through “reasonable – but not perfect – accuracy.” – 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.”

▪“We see no reason to follow Carrera, particularly given the strong criticism it has attracted from other courts.”

37

Ninth Circuit District Courts Are Divided

▪ Some Ninth Circuit courts have applied Carrera’s reasoning

– See, e.g., Perrine v. Sega of America, Inc., No. 13-cv-01962-JD, 2015 WL 2227846 (N.D. Cal. May 12, 2015) (denying certification; rejecting the plaintiff’s suggestion of self-identifying affidavits provided by class members as “highly unreliable” and riddled with “subjective memory problem[s].”) – In re Clorox Consumer Litigation, 2014 WL 3728469 (N.D. Cal. July 28, 2014) (denying certification; “[a]ffidavits from consumers alone are insufficient to identify members of the class” and thus, “there is no administratively feasible method of determining membership for the vast majority of potential members of Plaintiffs’ proposed sub-classes”).

38

Ninth Circuit District Courts Are Divided

▪ Other courts in the Ninth Circuit have rejected Carrera: ▪ For example, the court in McCrary v. Elations Co., LLC, 2014 WL 1779243, at *8 (C.D. Cal. Jan. 13, 2014) noted that Carrera “eviscerat[ed] low purchase price consumer class actions in the Third Circuit.” ▪ Several courts have agreed with McCrary

– Rahman v. Mott’s LLP, No. 13-cv-03482-SI, 2014 WL 6815779 (N.D. Cal. Dec. 3, 2014) (“In light of the precedent set by many other district courts in this Circuit, [including McCrary,] the Court declines to follow Carrera.”). – In re Conagra Foods, Inc., 302 F.R.D. 537, 566 (C.D. Cal. 2014) (“‘While [Carrera] may now be the law in the Third Circuit, it is not currently the law in the Ninth Circuit.”) (quoting McCrary, 2014 WL 1779243, at *8) – Morales v. Kraft Foods Group, Inc., No. CV14-04387, slip op. (C.D. Cal. June 23, 2015) (“Self-identification through sworn statements makes sense in this [consumer] case.”)

39

Ninth Circuit To Weigh In Soon

▪ Jones v. ConAgra Foods, Inc., No. C 12-01633 CRB, 2014 WL 2702726 (N.D. Cal. June 13, 2014). ▪ Plaintiffs moved to certify three separate product classes alleging that the defendant’s products contained deceptive claims that the products were “natural” and/or contained “natural antioxidants.”

– Hunt’s tomato products – PAM cooking spray products – Swiss Miss hot cocoa products

▪ District court denied all three pending motions.

40

Ninth Circuit To Weigh In Soon

▪ Due to variety in the products, sizes and labels of the three product lines and a lack of receipts for low-cost purchases, the Jones court found that consumers were unlikely to accurately self-identify, making all three classes unascertainable. ▪ Plaintiff appealed and the Ninth Circuit agreed to take up the case.

– Plaintiff and his amici (Public Citizen and the Center for Science in the Public Interest) argue:

▪The approach to ascertainability adopted by the district court is a recent invention of the Third Circuit in Carrera. ▪ Ascertainability requirement should be either eliminated from the class certification analysis altogether or substantially relaxed in order to clear the runway for consumer class actions.

▪ Briefing is complete, and the Ninth Circuit should rule in the near future.

41

District Courts In Other Circuits Also Are Divided

▪ Courts within same districts have issued conflicting rulings.

▪ Ault v. J.M. Smucker Co., No. 13 Civ. 3409(PAC), 2015 WL 4692454 (S.D.N.Y.

• Aug. 6, 2015) (Judge Paul A. Crotty)

– Class asserting that the defendant breached an express warranty by labelling certain cooking oils as “All Natural” – Court denied class certification in part on ascertainability grounds – Only certain products made by the defendant during the class period contained the allegedly misleading labels. In addition, the class period was defined differently for different cooking oil products. – These factors made “accurate self-identification infeasible.” Id. at *5.

42

District Courts In Other Circuits Also Are Divided

▪ But see Ebin v. Kangadis Food Inc., 297 F.R.D. 561 (S.D.N.Y.) (Judge Jed S. Rakoff)

– Court certified a class of olive oil purchasers who claimed that the defendants deceptively sold a product labeled “100% pure olive oil” – Judge Rakoff refused to follow earlier S.D.N.Y. case law addressing ascertainability – “[T]he class action device, at its very core, is designed for cases like this where a large number of consumers have been defrauded but no

• ne consumer has suffered an injury sufficiently large as to justify

bringing an individual lawsuit.” Id. at 567. – While the ascertainability difficulties were formidable, they “should not be made into a device for defeating the action.” Id.

43

Supreme Court Might Address Ascertainability in the Near Future

▪ Defendant in Mullins has indicated that it will seek certiorari ▪ Clear circuit split between Third, Fourth and Eleventh Circuits

• n one side and the Sixth and Seventh Circuits on the other

▪ 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

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

44

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.

45

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. ▪ Recent decisions by the Sixth and Seventh Circuits reflect a divergent approach to ascertainability. ▪ In light of this split, class action practitioners should pay close attention to how courts across the country weigh in on the ascertainability issue in the coming months and years.

46

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.

47

Thank You

48

▪ David Kouba david.kouba@aporter.com ▪ Nina Rose nina.rose@skadden.com