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The Continuing Trend Against the “Ascertainability” Requirement in Class Actions

Last week, the United States Supreme Court denied certification in Mullins v. Direct Digital, LLC, a Seventh Circuit case in which the Court refused to apply the Third Circuit’s ascertainability requirement onto Rule 23’s requirements for class certification, joining the growing number of jurisdictions to reject the doctrine.

In Mullins, the Court addressed the requirement in the context of a consumer class action alleging fraud in the sale of dietary supplements (specifically alleging that the “joint supplement” sold by Defendant  was nothing more than a sugar pill, with no support for its advertised health benefits).  Plaintiff filed for class certification and the Court certified the case as a class action.  Defendant appealed, arguing that the class was not “ascertainable” and that Plaintiffs must bear the burden of showing an “administratively feasible way to determine whether a particular person is a member of the class.”  The Defendant also argued that consumer affidavits would be insufficient as a matter of law to satisfy the requirement.

The Seventh Circuit, in rejecting this argument held that to the extent that ascertainability exists in the Circuit, it is limited to requiring clear class definitions, meaning that a person reading the definition could determine if they were a member of the class.  The Court, in weighing the value of the heightened standard of ascertainability proposed by Defendants, noted that the new standard improperly shifted the balance in Rule 23 classes, making it effectively impossible to litigate low value consumer class actions.

In reaching this conclusion, the Seventh Circuit reached the same conclusion as New Jersey State Courts, which also found last year that ascertainability was not encompassed by New Jersey’s class action rule, R.4:32, which is modeled after F.R.C.P. 23.  (See Daniels v. Hollister, 440 N.J. Super 359 (App. Div. 2015).  Both Courts recognized the reality that defendants would be unlikely to have records, and consumers would be unlikely to have receipts in these low value consumer cases, making the “heightened ascertainability” standard impossible to meet in many cases.

The Defendant’s argument in Mullins, like those in nearly all of the ascertainability cases boils down to the following:  Even if defendant is found to have committed fraud they can’t be held liable for their fraud unless Plaintiffs can show exactly who purchased their supplement.  The Defendants further advance the argument that believing consumers who swear, in an affidavit, that they purchased the produce is inappropriate, because obviously people would be quick to lie in an affidavit for the benefit of obtaining what would likely be a small monetary benefit. (In Mullins, the Plaintiff paid $69.99 for a bottle of Defendant’s product).  This bizarre argument boils down to this:  we would rather let fraudsters keep their ill gotten gains then repay consumers because someone, somewhere may lie in an affidavit.  Judge Rendell remarked on this in her concurring opinion in Byrd v. Aarons, stating:

The concerns regarding the due process rights of defendants are unwarranted as well, because there is no evidence that, in small-claims class actions, fabricated claims impose a significant harm on defendants. The chances that someone would, under penalty of perjury, sign a false affidavit stating that he or she bought Bayer aspirin for the sake of receiving a windfall of $1.59 are far-fetched at best. On the other hand, while most injured individuals will find that it is not worth the effort to claim the few dollars in damages that the class action can provide, in the aggregate, this sum is significant enough to deter corporate misconduct. Our ascertainability doctrine, by focusing on making absolutely certain that compensation is distributed only to those individuals who were actually harmed, has ignored an equally important policy objective of class actions: deterring and punishing corporate wrongdoing.

Aside from the apparent distrust of the honesty of the American consumer, the defense bar also generally objects on due process grounds – another red herring in what should be a straightforward discussion of the requirements of F.R.C.P. 23.  In the event that a class is tried, Defendant’s liability should be determined in the aggregate, it is capped by the number of supplements which they sold.  The question of which consumers receive compensation from that pool of funds does not ultimately effect the actual liability of Defendants.  Simply put, Defendants do not have a due process right to be protected in answering the question of how damages are distributed between plaintiffs after liability is determined.

Ultimately, the sole “ascertainability” question with which Courts should concern themselves in determining whether to certify a class is whether the class definition is sufficiently clear that a member of the class could see the definition and determine if they are in the class or not.  The Seventh Circuit’s decision is one more step towards unanimity on returning to the fundamental requirements of Rule 23.

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