Presenting a live 90-minute webinar with interactive Q&A Ascertainability Requirement for Class Certification Leveraging the Latest Court Decisions to Challenge Class Membership and Defeat Certification THURSDAY, MARCH 16, 2017 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: 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. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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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 objective 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
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