Kentucky Law Journal. Kentucky Law Journal. Consumer Class Conflict: The Battle against Heightened Ascertainability in the Sixth Circuit

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1 Kentucky Law Journal Established 1913 Consumer Class Conflict: The Battle against Heightened Ascertainability in the Sixth Circuit Posted on March 13, 2017 by Online Content Manager Posted in Online Originals Tagged ascertainability, Bragg, class action, consumer protection, F.R.C.P. 23, heightened ascertainability, sixth circuit Article 105 KY. L. J. ONLINE March 13, 2017 Houston Alexander Bragg The theoretical purpose of class action certi cation and litigation is to assist groups of plainti s, who are isolated, scattered, and utter strangers to each other, in procuring legal redress that may be [2] unavailable to them individually. [1] The practical purpose of class action litigation is to create a check on manufacturers and other defendants who cause minimal damage to a multitude of people. Without Federal Rule of Civil Procedure 23 (F.R.C.P. 23) and class action litigation, low- gure consumer harm would lack a remedy. The Third Circuit is waging war on the practical purpose of class action litigation by creating an overwhelming requirement that plainti s, at the pretrial stage, be able to produce a reliable and administratively feasible apparatus for determining whether a supposed class member falls within the class de nition. [3] This prerequisite to class certi cation acts as a shield to consumer recovery, completely altering the established de nition of class ascertainability. CONTACT Kentucky Law Journal University of Kentucky College of Law Lexington, KY (859) editors@kentuckylawjournal. org Introduction It may not be long before consumer class action lawsuits that arise under F.R.C.P. 23(b) are obsolete in the Sixth Circuit. Due to a recent Third Circuit Court of Appeals opinion heightening the ascertainability (also known as identi ability) requirement implicit in class certi cation, federal circuits may see a major shift in the landscape of class action litigation. Pretrial class certi cation is the focal point of modern class action practice for both plainti and defense attorneys. [4] The certi cation of a class will almost certainly induce a 1/19

2 settlement, whereas the preclusion of a class almost always results in the inevitable abandonment of a group suit. As most highbrows of the Federal Rules of Civil Procedure are already aware and as many scholars have previously explained, the majority of federal circuits have acknowledged and none have expressly rejected that there is an ascertainability requirement implicit in the reading of F.R.C.P. 23. It is axiomatic that in order for a class action to be certi ed, a class must exist. Similarly, it is unsurprising that the implicit ascertainability requirement has been said to require that the class be clearly de ned by referencing objective criteria (as opposed to the subjective state of mind of a class member) or, stated another way, the class must be identi able and susceptible to precise de nition. It was a dramatic shift, however, when the Third Circuit and several federal district courts adopted the notion that F.R.C.P. 23(b)(3) imposes an ascertainability requirement on class action plainti s that requires the production of a reliable and administratively feasible apparatus for determining whether a purported class member falls within the class de nition in addition to a clearly de ned class referencing objective criteria. [5] [6] [7] [12] [13] [8] [9] [14] [15] Practitioners and scholars call this heightened ascertainability. [11] [10] The Third Circuit s departure from traditional ascertainability (if such a new concept can be called traditional ) met signi cant resistance from the Seventh Circuit Court of Appeals when, in a recent opinion, it directly opposed the heightened ascertainability requirement. [16] In Mullins v. Direct Digital, the Court of Appeals for the Seventh Circuit held that heightened ascertainability disrupts the plain language balance of factors in F.R.C.P. 23 by placing absolute priority on administrability. The Plainti in Mullins, representing a class of similar consumers, sued a corporation for fraudulent representation. The Court held that the class de nition was clear and based on objective criteria, e ectively combating ambiguous, subjective, and fail-safe classes. The Seventh Circuit Court of Appeals refused to require the plainti to provide an administratively feasible apparatus for determining the members of the class. [20] [19] [17] [18] The Sixth Circuit Court of Appeals has yet to decide whether to adopt, reject, or ignore heightened ascertainability. However, the Sixth Circuit Court of Appeals in Young v. Nationwide Mutual Insurance Company did suggest that a class must not only exist, the class [21] must be susceptible of precise de nition. In referencing precision in its holding, the Sixth Circuit Court of Appeals may have been forewarning of its preference for administrative feasibility similar to that of the Third Circuit; claiming such, however, would be prematurely speculative.the various district courts within the Sixth Circuit that have weighed in on the ascertainability conundrum have demonstrated that there is ample inconsistency and concern as to how the circuit should manage the implicit ascertainability requirement of F.R.C.P. 23. It is critical that the Sixth Circuit refrain from adopting the Third Circuit s heightened ascertainability. The adoption of heightened ascertainability in the Sixth Circuit would mean a drastic reduction in consumer con dence as well as the practical end to judicial regulation of product safety. 2/19

3 This Note will explore the intricacies of the class action ascertainability circuit split between the Third and Seventh Circuits. It will attempt to illuminate the shortcomings of heightened ascertainability and discourage adoption of heightened ascertainability in the Sixth Circuit. Part I of this Note brie y describes the modern requirements for certi cation of consumer class actions. Part II identi es the ascertainability circuit split, explaining the positions of the Third and Seventh Circuits in detail. Part III argues that traditional ascertainability adequately curtails the three common di culties concerning class certi cation leaving no legitimate motive for heightening the ascertainability requirement. Finally, Part IV encourages the Sixth Circuit to refrain from adopting the unnecessary precaution that is Third Circuit heightened ascertainability. I. The Uphill Battle for Consumers: An Overview of Federal Rule of Civil Procedure 23 Because [m]odern society seems increasingly to expose men to... group injuries for which individually they are in a poor position to seek legal redress, F.R.C.P. 23 was amended in 1966 to provide legal recourse to groups of consumers who were harmed as a result of another s misfeasance regardless of their relationship to each other or the magnitude of their injury. Since its establishment, F.R.C.P. 23 has been met with considerable opposition, speci cally from consumer defendants and lobbyists. Immense corporations and their subsidiaries often are defendants in consumer class action lawsuits; over time these corporations, and their like-minded representatives, have become the face of class action reform. [24] [23] [22] The current language of F.R.C.P. 23 encompasses four explicit requirements for all class actions: (1) the proposed class is so numerous that joinder of each individual plainti is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. The current rule also requires that the class t into one of three functional categories. The most common of these categories, F.R.C.P. 23(b)(3), requires that the questions of law or fact common to class members predominate over any questions a ecting only individual members, and that the class action be superior to other available methods for fairly and e ectively adjudicating the controversy. [28] [27] [25] [26] In addition to the statutory requirements of F.R.C.P. 23, the common law also requires that class action plainti s be prepared to prove at the pre-trial stage that at least some, if not all, [29] of the above-mentioned prerequisites exist. The court, when determining whether to certify the class, is required to rigorously analy[ze] not only the statutory requirements 3/19

4 before certifying the class, but also the common law requirements. If any of the requirements, statutory or common-law-based, are absent the class will be precluded and certi cation will be denied. [30] Finally, recent rhetoric has suggested that F.R.C.P. 23 also includes an implied requirement [31] that the proposed class be ascertainable. The idea is that the class must be clearly de ned with reference to objective criteria before certi cation is proper thereby limiting the inde niteness inherent in large consumer classes. [32] The ascertainability requirement serves several important objectives. First, it eliminates serious administrative burdens that are incongruous with the e ciencies expected in a class action by insisting on the easy identi cation of class members [i.e. the administrability objective]. Second, it protects absent class members by facilitating the best notice practicable under Rule 23(c)(2) in a Rule 23(b)(3) action [i.e. the practicability objective]. Third, it protects defendants by ensuring that those persons who will be bound by the nal judgment are clearly identi able [i.e. the identi ability objective]. [33] While the super-majority of circuits have recognized that this implicit requirement does [34] indeed exist, considerable controversy still remains as to how ascertainability should be applied to consumer class actions. In summation, even without the heightened ascertainability requirement proposed by the Third Circuit, consumers, at present, face more than seven prerequisites to Rule 23(b)(3) class certi cation. Consumer plainti s must prove the four explicit class action requirements set forth in F.R.C.P. 23(a) (numerosity, commonality, typicality, and adequacy), the two additional consumer class requirements in F.R.C.P. 23(b)(3) (predominance and superiority), rigorous pretrial common-law factual requirements, and the traditional ascertainability requirement implicit in F.R.C.P. 23. The up-hill battle consumer-plainti s currently face su ciently curtails frivolous class action claims without the need for heightened ascertainability. II. Third Circuit Heightened Ascertainability vs. Seventh Circuit Traditional Ascertainability: A Comparison To require that a class of individuals be ascertainable before proceeding to trial is logical. Without such a prerequisite, plainti s counsel would not have to de ne or identify the parameters concerning his or her clients and their lawsuit until after class certi cation. [35] While the legitimacy of ascertainability is widely accepted, the precision with which a class must be ascertained is the subject of heated debate. [36] The two competing views concerning ascertainability (heightened ascertainability and traditional ascertainability) have created a rift in the federal common law. On one hand, a high bar for ascertainability would work to combat frivolous claims and protect industry innovation, but on the other 4/19

5 hand, a low bar for ascertainability allows for consumer regulation of dangerous products and judicial latitude in determining whether to certify a class. The heightened ascertainability approach to identi ability was pro ered by the Third Circuit Court of Appeals in Carrera v. Bayer Corporation. The United States District Court of New Jersey certi ed a class of individuals who purchased a weight management product called One-a-Day WeightSmart produced by the Bayer Corporation. The Plainti s argued that Bayer made false claims about WeightSmart s metabolism-enhancing properties even though they knew those statements were false. After rejecting a nationwide class of consumers who purchased WeightSmart, the lower court certi ed a class of consumers who [40] purchased WeightSmart in Florida. Bayer claimed that ascertaining the class of WeightSmart purchasers would be nearly impossible because the entirety of the class action hinged on each individual plainti retaining a three-year-old proof of purchase receipt. [39] [37] [38] [41] In certifying the class, the lower court cited the Eleventh Circuit saying the manageability inquiry will rarely, if ever, be in itself su cient to prevent certi cation of a class. Courts are generally reluctant to deny class certi cation based on speculative problems with case management. The court held that the obstacles facing the plainti s identi cation of its class members were not insurmountable, at least in part, because the claims involved were relatively small and counsel identi ed methods of verifying their claims. Because plainti s counsel clearly de ned the class by referencing receipts, loyalty club membership, old packaging, a davits by consumers, and online purchase records (i.e. objective criteria), the lower court held that the problems with the manageability of the class were insu cient to prevent certi cation. The Third Circuit Court of Appeals, under an abuse of discretion standard, reversed the lower court s decision when it extended its hardline approach to ascertainability fashioned in Marcus v. BMW of North America. The Third Circuit expressly rejected the lower courts ndings by holding that [a]scertainability mandates a rigorous approach at the outset because of the key roles it plays as part of a Rule 23(b)(3) class action lawsuit, and that [i]f class members are impossible to identify without extensive and individualized factnding or mini-trials, then a class action is inappropriate. The court set forth three primary reasons for heightening the widely accepted standard for ascertainability. The court determined that [f]irst, at the commencement of a class action, ascertainability and a clear class de nition allow potential class members to identify themselves for purposes of opting out of a class. Second, it ensures that a defendant s rights are protected by the class action mechanism and that vague, subjectively de ned, and fail-safe classes are not [50] [42] [49] [44] certi ed. Third, it ensures that the parties can identify class members in a manner consistent with the e ciencies of a class action. The method of determining whether someone is in the class must be administratively feasible. [46] [51] [48] [52] [43] [45] [47] Under the Third Circuit s de nition of ascertainability, a plainti does not satisfy the ascertainability requirement if additional individualized fact- nding will be required to 5/19

6 [53] prove class membership. The primary focus of heightened ascertainability is simply administrative feasibility. According to commentators, [a]dministrative feasibility means... identifying class members [through] a manageable process that does not require much, if any, individual factual inquiry. [54] In direct response to the Third Circuit s heightened ascertainability holdings in Carrera and Marcus, the Seventh Circuit rea rmed its commitment to the established traditional de nition of ascertainability, expressly rejecting heightened ascertainability in Mullins v. Direct Digital, L.L.C. In Mullins, the lower court certi ed a class of consumers who purchased a joint support supplement drug called Insta ex. The plainti s claimed that Direct Digital made misrepresentations about its product by asserting that Insta ex would relieve discomfort, increase mobility, and that it was scienti cally formulated... and clinically tested when, in reality, it was nothing more than a sugar pill. The Eastern Division of the United States District Court of Illinois held that the consumer class of Insta ex purchasers was ascertainable because it was objectively contained to all individuals who purchased Insta ex for personal use during the class period and the class [58] [55] period is nite. The court held that in order to establish pretrial ascertainability, the class should be restricted to individuals who purchased the supplement within the applicable statute of limitations (the class period), in certain states (the class states), for personal use, and only until the manufacturer notice was disseminated. [59] [56] [57] The Seventh Circuit Court of Appeals upheld the lower court s class certi cation, refusing to adopt the Third Circuit s heightened ascertainability approach proposed by the [60] defendants, Direct Digital. In its decision, the Seventh Circuit deconstructed the Third Circuit s heightened ascertainability approach. It observed: As it stands now, the Third Circuit s test for ascertainability has two prongs: (1) the class must be de ned with reference to objective criteria (consistent with long-established law discussed above), and (2) there must be a reliable and administratively feasible mechanism for determining whether putative class members fall within the class de nition. [61] The Seventh Circuit determined that heightened ascertainability moves well beyond the examination of class adequacy itself. It transforms the requirement into an examination of the potential di culties in both identifying particular members of a proposed class and evaluating the validity of class members potential claims. The Seventh Circuit concluded in part that heightened ascertainability s focus on administrability exists as a detriment to other equally important considerations. [63] [62] The Seventh Circuit Court of Appeals held that Direct Digital s apprehensions were su ciently extinguished by the numerous explicit requirements of F.R.C.P. 23 and traditional ascertainability; the policy, equity, and due process arguments proposed by defendant, Direct Digital were curtailed by existing jurisprudence. Further, it held that [64] 6/19

7 the second prong of the Third Circuit s heightened ascertainability test skews the balance of class action considerations by focusing too much on the administrability of the class [65] action litigation. The Seventh Circuit suggested that, in practice, the heightened ascertainability requirement could erect a nearly insurmountable hurdle at the class certi cation stage in situations where a class action is the only viable way to pursue valid, but small, individual claims. [66] The Seventh and Third Circuits have bifurcated the doctrine of class action ascertainability. Both Carrera and Mullins were misrepresentation cases involving a class of consumers who purchased an over-the-counter drug that failed to live up to the company s promises. In the Third Circuit, the Mullins class would have most likely been precluded, whereas in the Seventh Circuit, the Carrera class would almost certainly have been certi ed. Most jurisdictions will, at some point, be faced with the question of whether they are willing to deny class certi cation based on speculative problems with case management. At that point, the jurisdiction will have to choose whether to follow the established norms of traditional ascertainability, adopt heightened ascertainability, or create a separate approach to ascertainability, further complicating class action jurisprudence. III. Traditional Ascertainability Accounts for the Totality of Class Action Concerns: A Balanced Approach to Ascertainability The policy concerns motivating the heightened ascertainability requirement are better addressed by applying carefully the explicit requirements of Rule 23(a) and especially (b) [67] (3). The existing requirements of F.R.C.P. 23 adequately, and without excess, address the balance of interests that class action litigation was created to protect. As stated in Mullins, the Third Circuit s approach to ascertainability is awed; it gives unbalanced priority to a single objective, administrability, which results in an upset of the established F.R.C.P. 23 balance. [69] [68] The Third Circuit Court of Appeals, in its landmark heightened ascertainability case, Carrera, set forth three separate, yet equally important, functions that the ascertainability requirement serves to protect: administrability, practicability, and identi ability. Nowhere in the Carrera holding, or anywhere else in the law of ascertainability, is it written that any one of these functions is more determinative than the others or should be given more consideration than its counterparts. [70] Indeed, the three objectives within the implied requirement of ascertainability must also be balanced against other outside in uences and interests of the parties involved. The Seventh Circuit Court of Appeals, in Mullins, held that a court must consider the likely di culties in managing a class action, but in doing so it must balance countervailing interests to decide whether a class action is superior to other available methods for fairly and e ciently adjudicating the controversy. The court further held that the administrability of the class (an aspect of ascertainability) must be balanced with other [72] [71] 7/19

8 pertinent interests, including the e ectiveness of the recourse and the su ciency of class [73] action over other legal avenues. Thus, administrability, the element of ascertainability that the Third Circuit s approach exclusively expands, is more appropriately one of many factors in the totality of the class action balance. As such, one factor cannot supersede, without legislative indication, all of the other moving parts involved in a multi-faceted class action lawsuit. As the Seventh Circuit Court of Appeals so eloquently stated, [w]hen courts wrote of th[e] implicit requirement of ascertainability, they trained their attention on the adequacy of the [74] class de nition itself. The court explained that [t]hey were not focused on whether, given an adequate class de nition, it would be di cult to identify particular members of the class as heightened ascertainability so speculatively requires. [75] A. Traditional Ascertainability Sufficiently Protects Defendants Against Vague Classes The Seventh Circuit, in Mullins, set forth three common ascertainability complications that heightened ascertainability was designed to remedy. The rst of these can be described as vague classes. Vague classes result when the boundaries concerning who can become a class member are not properly drawn. As James W. Moore, of Moore s Federal Practice, wrote, [t]here can be no class action if the proposed class is amorphous or imprecise. To avoid vagueness, class de nitions generally need to identify (1) a particular group (2) harmed during a particular time frame (3) in a particular location and (4) in a particular [79] [77] way. Precision is necessary to identify who will receive notice of the class, who will enjoy recovery if the class is successful, and who will be bound by the judgment. Without some sort of protection against vague classes, defendant corporations and manufacturers could be liable to an inde nite number of plainti s without being able to su ciently allocate the cost of their actions. This proposition has been rmly rejected by legislatures and judiciaries. [76] [80] [78] The traditional approach to ascertainability, namely a clearly de ned class referencing objective criteria, accounts for the four particularities required to avoid vague classes without over-protecting class action defendants from group recovery. By clearly de ning a class, under the traditional approach to ascertainability, one must establish certain bounds in which a consumer must fall. In Mullins, the plainti s must have (1) purchased Insta ex; (2) during the prescribed statute of limitations; (3) in Illinois and other certain states; (4) for personal use. If individuals satis ed those parameters they could become a member of the [82] class. If even one of those elements was not present, the individual would not be accepted as a member. Similarly, in Carrera, the district court explained that the plainti s (1) must have purchased WeightSmart (2) in the state of Florida and (3) must be able to verify their purchase through receipts or other records from loyalty cards or online [84] [81] [83] purchases. The traditional approach to ascertainability e ectively curtailed the possibility of certifying a vague class in both Mullins and in the district court interpretation of Carrera. 8/19

9 On the other hand, while a court would most likely avoid any unintentional certi cation of a vague class by demanding that plainti s provide a reliable and administratively feasible apparatus for determining class membership at the pretrial stage, as the Third Circuit s heightened ascertainability requires, it would do so the cost of rejecting legitimate class suits like the one in Carrera. B. Traditional Ascertainability Sufficiently Protects Against Classes Based on Subjective Criteria The second complication that heightened ascertainability purports to avoid is classes based [85] on subjective criteria. The objectivity requirement of traditional ascertainability (i.e. classes referencing objective criteria) disallows the certi cation of classes that are based on [86] the state of mind of the plainti. Plainti s can usually avoid this by de ning a class in terms of conduct as opposed to a subjective state of mind. The subjective class issue occurs when a group of plainti s attempt to nd unity in the expectations they had or their personal feelings. A class based on what someone thinks or subjectively expects would be extremely problematic. Not only would the class require the court to address each member s claim individually to determine legitimacy, but it would be impossible to substantiate whether the claims were meritorious. [87] The traditional ascertainability approach, by de nition, accounts for the objectivity necessary to determine a legitimate class, whereas the additions made by heightened ascertainability add little, if anything, to the fold. The traditional approach requires a prima facie reference of objective criteria before ascertainability can be established. In Simer v. Rios, the Seventh Circuit, the circuit most fervently combating heightened ascertainability, applied the traditional ascertainability approach and rejected a class certi cation for a group of people who sought accreditation based on their individual discouraged feelings. The plainti s in Simer were a group of individuals who were discouraged from applying for an energy conservation grant because of a caveat for that program that rst required delinquency. The class de nition did not reference objective criteria based on conduct but instead based membership on a subjective state of being that proved far too di cult to [91] [90] ascertain. In Mullins and Carrera, the courts recognized that the plainti s were not basing their claims on the individual disappointment of each member in the product that they purchased, but rather on the act of purchasing a product that misrepresented itself an [92] objectively provable contention. The heightened ascertainability requirement for a reliable and administratively feasible apparatus for determining class membership, by itself, fails to add any substance to the struggle against subjective class certi cation. [88] [89] C. Traditional Ascertainability Sufficiently Protects Against Fail-Safe Classes Finally, the Seventh Circuit Court of Appeals in Mullins identi ed fail-safe classes as the third complication commonly arising out of the ascertainability requirement. Fail-safe classes are classes that cannot be de ned until the case has been resolved on its merits. [93] [94] 9/19

10 Under F.R.C.P. 23, classes are disallowed if they are de ned in terms of success on the [95] merits. This is a particular problem because the class member will either win the class action, or, by virtue of losing, become a non-class member, creating a double-edged sword for class action defendants. If the class is certi ed then the defendant is pressured to settle; but if the class is rejected, then the individual may still have a separable action not barred by claim or issue preclusion. [97] [96] In order to avoid creating a fail-safe class, membership should not depend on the liability of [98] the defendant. Similar to its defense against vague classes, the traditional approach to ascertainability contemplates the problem of fail-safe classes by requiring the class to be [99] clearly de ned. When a plainti de nes a class clearly, it becomes apparent whether the class is bound together by the defendant s liability. In the case of Sauter v. CVS, the plainti tried to certify a class of individuals who had received non-emergency telemarketing calls from CVS even though they did not give consent to the calls. By de ning the class in such a manner, the plainti s would win the case if they had indeed been called and did not give consent (the two things necessary to win in this case), but would be released from trial if they did not survive the class de nition, thus evading claim preclusion by not being bound by an adverse judgement. In Mullins, the class was predicated on the su ciency of the product s representations and not on the liability of the defendant. If Direct Digital prevails in Mullins, res judicata will bar class members from re-litigating their claims [103] [101] in a di erent forum. Traditional ascertainability allowed the court in Sauter to identify a [104] [105] fail-safe class and the court in Mullins to distinguish a properly ascertainable class. Third Circuit heightened ascertainability is unnecessary to protect against fail-safe classes. [100] [102] While the Third Circuit claimed that its heightened approach to ascertainability would promote administrability, practicability, and identi ability of class claims, the additions seem to have little to no e ect on the complications facing class ascertainability. The traditional approach to ascertainability along with the explicit requirements of F.R.C.P. 23 su ciently curtail the common complications facing class ascertainability. [106] IV. The Sixth Circuit Approach to the Ascertainability Condundrum Ascertainability in the Sixth Circuit is muddled; no concrete holding has been established concerning the ascertainability requirement implicit in F.R.C.P. 23. The Sixth Circuit Court of Appeals has not explicitly adopted heightened ascertainability, but in Young v. Nationwide Mutual Insurance Company, it adopted the de nition from Moore s Federal Practice that a class must not only exist, [it] must be susceptible to precise de nition. While the Young decision has been heavily scrutinized, it does suggest that the Sixth Circuit may be open to adopting a heightened approach to ascertainability. In Young, the plainti s created a class of insured individuals who were allegedly overcharged for the services they received (i.e. they paid taxes on non-taxable charges). The court explained that [108] [110] [109] [107] 10/19

11 [f]or a class to be su ciently de ned, the court must be able to resolve the question of whether class members are included or excluded from the class by reference to objective criteria. In some circumstances, a reference to damages or injuries caused by particular wrongful actions taken by the defendants will be su ciently objective criterion for proper inclusion in a class de nition. Similarly, a reference to xed, geographic boundaries will generally be su ciently objective for proper inclusion in a class de nition. [111] In its discussion of the class de nition, the court in Young withdrew back to traditional ascertainability language and continued later in its opinion to refer to administrability as if it were separate and apart from class de nition and ascertainability. While the opinion in Young seems to tender the court s preference for administrability, it retreats on multiple occasions and explains that the di culty in reviewing class membership is not dispositive. [113] [112] If the Sixth Circuit Court of Appeals opinion in Young was unhelpful in foreshadowing what the circuit may do when faced with an ascertainability conundrum, then the opinions from the district courts within the Sixth Circuit concerning ascertainability have muddied the waters even more. There is little agreement among the Sixth Circuit district courts that have commented on the subject of ascertainability. The Eastern Division of the Northern District of Ohio opined in In re Polyurethane Foam Antitrust Litigation that the Sixth Circuit has not explicitly required ascertainability, but in the same breath recognized the Third Circuit s two-pronged heightened ascertainability test as the proper test for determining [114] ascertainability. The Western Division of the Northern District of Ohio in Galoski v. Applica Consumer Products required only that the class be clearly de ned referencing objective criteria, mirroring the traditional test for ascertainability. Similarly, the Western District of Tennessee in Cole v. City of Memphis required only that a class be clearly de ned referencing objective criteria, again, mirroring the traditional test for [116] ascertainability. The Eastern District of Michigan in Barry v. Corrigan blurs heightened ascertainability with the requirements implicit for de ning a class set forth in F.R.C.P. 23(c) [117] (1)(B). With such discord in the realm of class ascertainability, it is understandable why the Third and Seventh Circuits have sketched out the boundaries of ascertainability with such vigor in their jurisdictions. Hard and fast rules are the easiest way to set expectations and expose weaknesses in a jurisdiction s approach to a judicial rule. Certainly, there is no consensus in the Sixth Circuit as to the status of ascertainability. However, if the Sixth Circuit Court of Appeals decision in Young is any indication, then the Sixth Circuit, a historically objective circuit, is on its way to adopting a heightened ascertainability approach to class action certi cation that would undermine the justi cations for F.R.C.P. 23(b)(3) consumer class actions. [118] [115] 11/19

12 As explained above, the ascertainability requirement serves to eliminate administrative burdens, facilitate the best notice practicable, and protect defendants from expansive judgements. The rst objective of the implicit ascertainability requirement administrability is unequivocally represented in the heightened ascertainability approach. [120] However, the Sixth Circuit already has the superiority and numerosity requirements of F.R.C.P. 23(a) and (b)(3), which also support the administrability objective without requiring the plainti to prove feasibility and provide an apparatus by which to measure the [121] [119] class. The second and third objectives practicality and identi ability are also furthered by Third Circuit heightened ascertainability, albeit minimally, by requiring that the plainti prove feasibility of the class and provide an apparatus for determining the identity of class members. Regardless of the implicit practicality and identi ability aspects of heightened ascertainability, the Sixth Circuit requires class counsel to prove typicality, commonality, numerosity, traditional ascertainability, and the superiority requirements [122] before certi cation. Thus, it adds nothing to the practicality nor the identi ability discussions to adopt the Third Circuit s new requirement. When read together, the current requirements of F.R.C.P. 23 requires that the class be practical in its noti cation of identi ed class members. Heightened ascertainability is, if anything, repetitive. While it purports to establish a novel rule by which to streamline the class certi cation process, it merely restates the objectives implicit in the current reading of F.R.C.P. 23 and the common law of class actions. It is imperative that the Sixth Circuit refrain from the adoption of heightened ascertainability. The adoption of such a rule does not advance protection against vague, subjective, or failsafe classes, nor does it promote any novel objectives. Adopting heightened ascertainability gives unwarranted priority to judicial administrability of a class and could mean the practical end to consumer regulation of the market. Conclusion The theoretical purpose of class action certi cation and litigation is to assist groups of plainti s who are isolated, scattered, and utter strangers to each other to procure legal redress, which may be unavailable to them individually. The practical e ect of class action litigation is a check on manufacturers and other defendants who cause minimal damage to a multitude of people. Without F.R.C.P. 23 and class action litigation, a large portion of consumer harm would lack a remedy. [123] It is highly unlikely that Congress will abolish consumer class action practice anytime in the foreseeable future. By heightening the ascertainability requirement, however, courts may practically e ectuate a similar result. There is a public policy in favor of holding defendants accountable no matter how small or large the harm they cause. Plainti s currently face at least seven requirements they must prove before the certi cation of a class is granted; the additional administrability requirement proposed by the Third Circuit does nothing more than add to the thicket of hurdles for class counsel. The implications of [124] 12/19

13 creating another hurdle for class action plainti s could mean an immense decline in consumer class action suits and less judicial oversight of manufacturers and corporate defendants. Ascertainability is essential to judicial economy. I do not advocate that ascertainability is [125] unnecessary, as some scholars have done. Rather, I argue that the traditional approach to ascertainability is su cient to curb the threats presented by unascertainable classes. The Third Circuit s heightened approach to ascertainability skews the proper balance of interest by placing too much weight on administrability. The Sixth Circuit should repudiate the Third Circuit s heightened approach to ascertainability and embrace the Seventh Circuit s traditional approach in order to maintain the balance necessary for equitable class certi cation determinations. [1] J.D. Candidate, 2017, University of Kentucky College of Law; B.A., 2013, Morehead State University. In memory of Edna May Bragg to whom I owe my faith and fortitude. [2] Geo rey C. Shaw, Class Ascertainability, 124 YALE L. J. 2354, 2356 (2015) (quoting Harry Kalven, Jr. & Maurice Rosen eld, The Contemporary Function of the Class Suit, 8 U. CHI. L. REV. 684, 688 (1941). [3] Carrera v. Bayer Corp., 727 F.3d 300, 308 (3rd Cir. 2013). [4] See Jason Steed, On Ascertainability as a Bar to Class Certi cation, 23 APP. ADVOC. 626, 626 (2011); see also Chamberlan v. Ford Motor Co., 402 F.3d 952, 957 (9th Cir. 2005) (explaining the death knell nature of class certi cation). [5] Steed, supra note 4. See generally Samuel Issacharo, Myriam Gilles, Andrew J. Pincus & D. Theodore Rave, The Current State of the Consumer Class Action, 11 N.Y.U. J. L. & BUS. 647 (2015) (providing background commentary on modern class action litigation). [6] 5 JAMES WM. MOORE ET AL., MOORE S FEDERAL PRACTICE, 23.21[1] (3d ed. 2016). [7] Steed, supra note 4. [8] Shaw, supra note 2, at ; Steed, supra note 4, at 628. See also, e.g., Mullins v. Direct Digital, L.L.C., 795 F.3d 654, 657 (7th Cir. 2015); Carrera, 727 F.3d at 304; Dukes v. Wal- Mart Stores, Inc., 603 F.3d 571, 589 n.8 (9th Cir. 2010); Romberio v. Unumprovident Corp., 385 F.App x. 423 (6th Cir. 2009); In re Initial Pub. O erings Sec. Litig., 471 F.3d 24, 30 (2d Cir. 2006); In re PolyMedica Corp. Sec. Litig., 432 F.3d 1, 19 n.22 (1st Cir. 2005); Shook v. El Paso Cty., 386 F.3d 963, 972 (10th Cir. 2004); In re A.H. Robins Co., 880 F.2d 709, 728 (4th Cir. 1989); DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970). 13/19

14 [9] Consumer Class Conflict: The Battle against Heightened Ascertainability in the Sixth Circuit Kentucky Law Journal See Steed, supra note 4 at 628 (stating that most circuits have acknowledged an ascertainability requirement).but see Shaw, supra note 2, at 2354 (arguing a rejection of the ascertainability requirement). [10] Steed, supra note 4 at 626. [11] MOORE, supra note 6. [12] See Mullins, 795 F.3d at [13] [14] Steed, supra note 4, at 627. Carrera v. Bayer Corp., 727 F.3d 300, 307 (3rd Cir. 2013). [15] See, e.g., Mullins, 795 F.3d at 663; Shepard Goldfein & James A. Keyte, Heightened Ascertainability In Class Actions: Clash of Two Circuits, 254 N.Y.L.J. available at les/publications/ skadden.pdf. [16] [17] See Mullins, 795 F.3d at 658. [18] [19] at [20] at 662. [21] [22] Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 538 (6th Cir. 2012). Harry Kalven, Jr. & Maurice Rosen eld, The Contemporary Function of the Class Suit, 8 U. CHI. L. REV. 684, 686 (1941). [23] See FED. R. CIV. P. 23. [24] See Class Action Fairness Act of 2005, Pub. L. No , 119 Stat 4; Public Citizen, Unfairness Incorporated: The Corporate Campaign Against Consumer Class Actions (2003). [25] See FED. R. CIV. P. 23(a) (known in short as (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy). [26] See FED. R. CIV. P. [27] Steed, supra note 4. [28] See FED. R. CIV. P. 23(B)(3) (known, in short, as (5) predominance and (6) superiority). 14/19

15 [29] Consumer Class Conflict: The Battle against Heightened Ascertainability in the Sixth Circuit Kentucky Law Journal See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). [30] at 351. [31] MOORE, supra note 6. [32] Mullins v. Direct Digital, L.L.C., 795 F.3d 654, 659 (7th Cir. 2015). [33] [34] Carrera v. Bayer Corp., 727 F.3d 300, (3rd Cir. 2013). Steed, supra note 4. [35] See Simer v. Rios, 661 F.2d 655, (7th Cir. 1981) (discussing the issues present in de ning and identifying the members of a class). [36] See, e.g. Mullins, 795 F.3d 654; Carrera, 727 F.3d 300; Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571 (9th Cir. 2010); Romberio v. Unumprovident Corp., 385 F.App x. 423 (6th Cir. 2009); In re Initial Pub. O erings Sec. Litig., 471 F.3d 24 (2nd Cir. 2006); In re PolyMedica Corp. Sec. Litig., 432 F.3d 1 (1st Cir. 2005); Shook v. El Paso Cnty., 386 F.3d 963 (10th Cir. 2004); In re A.H. Robinson Co., Inc., 880 F.2d 709 (4th Cir. 1989); DeBremaecker v. Short, 433 F.2d 733 (5th Cir. 1970). [37] See Carrera, 727 F.3d at 305 (3rd Cir. 2013). [38] 2011). See Carrera v. Bayer Corp., No , 2011 WL , at *1 (D.N.J. Nov. 22, [39] at *1. [40] at *9. [41] [42] at *3. at *4 (quoting Klay v. Humana, Inc., 382 F.3d 1241, (11th Cir. 2004)). [43] [44] [45] Carrera v. Bayer Corp., 727 F.3d 300, 305 (3rd Cir. 2013). [46] at [47] at 307. [48] at /19

16 [49] at 307. Consumer Class Conflict: The Battle against Heightened Ascertainability in the Sixth Circuit Kentucky Law Journal [50] [51] [52] [53] [54] at 304. WILLIAM B. RUBENSTEIN, NEWBERG ON CLASS ACTIONS 3:3 (rev. 6th ed. Supp. 2016). [55] See Mullins v. Direct Digital, L.L.C., 795 F.3d 654, 658 (7th Cir. 2015). [56] Mullins v. Direct Digital, LLC, No. 13-CV-1829, 2014 WL , at *1, *4 (N.D. Ill. Sept. 30, 2014). [57] at *1. [58] at *2. [59] [60] Mullins, 795 F.3d at 657. [61] at 662 (citing Byrd v. Aaron s Inc., 784 F.3d 154, 163 (3d Cir. 2015); see also Shelton v. Bledsoe, 775 F.3d 554, 560 (3d Cir. 2015) (explaining that de ning the class and class ascertainability are distinct concepts). [62] Mullins, 795 F.3d at 657. See also Byrd, 784 F.3d at [63] See Mullins, 795 F.3d at 658, 672. [64] [65] at at 662. [66] at 662. [67] at 658. [68] [69] [70] Mullins, 795 F.3d at 658. See Carrera v. Bayer Corp., 727 F.3d 300, (3d Cir. 2013). 16/19

17 [71] See Mullins, 795 F.3d at 658. Consumer Class Conflict: The Battle against Heightened Ascertainability in the Sixth Circuit Kentucky Law Journal [72] (quoting : FED. R. CIV. P. 23(b)(3)). [73] See generally id. at (explaining that the superiority requirement is comparative and that courts must assess e ciency with an eye toward other available methods ). [74] at 659. [75] [76] at 657. [77] [78] MOORE, supra note 6 (quoted in Young v. Nationwide Ins. Co., 693 F.3d 532, 538 (6th Cir. 2012)). [79] 1 MCLAUGHLIN ON CLASS ACTIONS 4:2 (13th ed update). [80] Mullins, 795 F.3d at 660 (citing Kent v. SunAmerica Life Ins. Co., 190 F.R.D. 271, 278 (D. Mass. 2000)). [81] at 658. [82] See id. [83] [84] See id. See Carrera v. Bayer Corp., No , 2011 WL , at *2-3 (D.N.J. Nov. 22, 2011). [85] Mullins, 795 F.3d at 657. [86] [87] at 660. WILLIAM B. RUBENSTEIN, NEWBERG ON CLASS ACTIONS 3:5 (5th ed update). [88] 2015). Mullins, 795 F.3d at 662 (quoting Byrd v. Aaron s Inc., 784 F.3d 154, 163 (3d. Cir. [89] Simer v. Rios, 661 F.2d 655, (7th Cir. 1981). [90] at [91] at , /19

18 [92] Consumer Class Conflict: The Battle against Heightened Ascertainability in the Sixth Circuit Kentucky Law Journal Mullins, 795 F.3d at ; Carrera v. Bayer Corp., No , 2011 WL , at *7, (D.N.J. Nov. 22, 2011). [93] Mullins, 795 F.3d at 657. [94] See Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 825 (7th Cir. 2012). [95] [96] [97] See id. [98] Mullins, 795 F.3d at 660 (citing Erin L. Geller, Note, The Fail-Safe Class as an Independent Bar to Class Certi cation, 81 FORDHAM L. REV. 2769, 2808 (2013)). [99] [100] at 659 (explaining the traditional approach to ascertainability). Sauter v. CVS Pharmacy, Inc., No. 2:13-CV-846, 2014 WL , at *1 (S.D. Ohio May 7, 2014). [101] at *3-4. [102] Mullins, 795 F.3d at 661. [103] [104] [105] Sauter, 2014 WL , at *9. Mullins, 795 F.3d at [106] See supra Part III and accompanying notes. [107] Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 538 (6th Cir. 2012) (quoting : MOORE, supra note 6). [108] See, e.g., Cole v. City of Memphis, 839 F.3d 530, 541 (6th Cir. 2016) (comparing 6th Circuit s decision in Young, 693 F.3d 532, to the decisions to other circuits). [109] Young, 693 F.3d at [110] at 535. [111] at (quoting MOORE, supra note 6). [112] See id. at /19

19 [113] Consumer Class Conflict: The Battle against Heightened Ascertainability in the Sixth Circuit Kentucky Law Journal [114] In re Polyurethane Foam Antitrust Litig., No. 1:10 MD 2196, 2015 WL at *5-7 (N.D. Ohio July 21, 2015). [115] Galoski v. Applica Consumer Prods., 309 F.R.D. 419, 422 (N.D. Ohio 2015). [116] Cole v. City of Memphis, No. 2:13-cv JPM-dkv, 2015 WL , at *5 (W.D. Tenn. May 28, 2015). [117] [118] Barry v. Corrigan, 79 F. Supp. 3d 712, (E.D. Mich. 2015). See generally Young, 693 F.3d 532 (describing class certi cation requirements). [119] Carrera v. Bayer Corp., 727 F.3d 300, (3rd Cir. 2013). [120] See Mullins v. Direct Digital, L.L.C., 795 F.3d 654, (7th Cir. 2015) (conceding that heightened ascertainability addresses administrability). [121] FED R. CIV. P. 23(a), (b)(3). [122] See, e.g., Young, 693 F.3d 532. [123] Shaw, supra note 2 (quoting Harry Kalven, Jr. & Maurice Rosen eld, The Contemporary Function of the Class Suit, 8 U. CHI. L. REV. 684, (1941)). [124] See FED. R. CIV. P. 23. [125] Shaw, supra note 2, at /19