Eleventh Circuit Rules Administrative Feasibility is Not Required for Class Certification but Remains a Factor in Class Manageability Analysis
Ellis & Winters
In Cherry v. Dometic Corp., 986 F.3d 1296 (11th Cir. Feb. 2, 2021), the Eleventh Circuit furthered the divide among the circuits as to whether putative class representatives must prove the existence of an administratively feasible method to identify absent class members as a precondition for class certification. Ultimately, the Court rejected the “heightened standard” adopted by its sister courts in the First, Third, and Fourth Circuits—which requires proving the manageability of identifying the class members—but left open the door to class defendants to defeat a Rule 23(b) certification for lack of administrative feasibility.
In Cherry, the putative class representatives—18 purchasers of refrigerators manufactured by Dometic Corporation—brought a class action against the manufacturer under the Magnuson-Moss Warranty Act, alleging that widespread defects in the refrigerators created a risk of dangerous leaks and fires. The purchasers moved for class certification and proposed a class consisting of all persons who purchased certain models of Dometic refrigerators that were built since 1997. The main issue at the class certification stage was whether the proposed class satisfied the ascertainability requirement of Rule 23. In support of certification, the purchasers argued that the proposed class was ascertainable because the class definition relied on objective criteria. Moreover, although the purchasers argued that it was not a prerequisite, class-member identification would be administratively feasible as well because the case involved defective refrigerators bearing distinctive identifiers, which Dometic had previously used to identify purchasers for product recalls. Dometic argued that not only was proof of administrative feasibility a requirement, but the purchasers failed to provide any evidence that the proposed identification would be workable. The district court denied class certification, agreeing that the purchasers failed to prove administrative feasibility.
On appeal, the Eleventh Circuit reversed the district court’s denial of class certification, holding that the lower court erred because Rule 23 provides no basis to require administrative feasibility.
The Eleventh Circuit prologued its analysis by noting that administrative feasibility is one of the most hotly contested issues in class action practice today. Indeed, the circuits’ disparate application of administrative feasibility doctrine impacts realms ranging from employment law to products liability. Although the Eleventh Circuit ultimately determined that administrative feasibility is not a precondition for class certification, the Cherry court further muddied the waters by holding that the inquiry “remains relevant” to determining whether a class may proceed.
Having only addressed the question in unpublished decisions, the Eleventh Circuit first examined its sister courts’ treatment of the issue. The First, Third, and Fourth Circuits apply a heightened standard requiring proof of administrative feasibility as a prerequisite. This heightened standard requires putative class representatives to prove that the identification of class members will be “a manageable process that does not require much, if any, individual factual inquiry.” Carrera v. Bayer Corp., 727 F.3d 300, 307–08 (3d Cir. 2013); see also In re Nexium Antitrust Litig., 777 F.3d 9, 19 (1st Cir. 2015); EQT Prod. Co. v. Adair, 764 F.3d 347, 358–59 (4th Cir. 2014). On the other hand, the Second, Sixth, Seventh, Eighth, and Ninth Circuits reject that approach, requiring only that the class is adequately defined and clearly ascertainable. See, e.g., In re Petrobras Sec., 862 F.3d 250, 267 (2d Cir. 2017); Rikos v. Procter & Gamble Co., 799 F.3d 497, 525 (6th Cir. 2015); Mullins v. Direct Digit., LLC, 795 F.3d 654, 662 (7th Cir. 2015); Sandusky Wellness Ctr., LLC v. Medtox Sci., Inc., 821 F.3d 992, 995–96 (8th Cir. 2016); Briseno v. ConAgra Foods, Inc., 844 F.3d 1121, 1123 (9th Cir. 2017).
Finding little help in the circuit split and no governing precedent from its own circuit, the Eleventh Circuit turned to the plain language of Rule 23. The Cherry court defined a class as “clearly ascertainable” if the Court is “certain that its membership is ‘capable of being’ determined.” Cherry, 986 F.3d at 1303. Next, noting that the Supreme Court has made clear that district courts must grant class certification in “each and every case” where the conditions of Rule 23(a) and (b) are met, the Eleventh Circuit determined that the district courts lack discretion to add requirements to the Rule. Therefore, the Court held, because administrative feasibility does not follow from the text of Rule 23(a), it is not part of the ascertainability inquiry.
Looking to Rule 23(b), the Eleventh Circuit did note that administrative feasibility has relevance for Rule 23(b)(3) classes in light of the manageability criterion of Rule 23(b)(3)(D), which requires a court to consider “the likely difficulties in managing a class action” when determining class certification. Thus, an administratively infeasible method of identifying class members is a difficulty in managing a class action. However, even there the Cherry Court held that a district court must balance its administrative feasibility finding against other considerations, such as superiority and efficiency of the class action.
In short, the Eleventh Circuit held that, while administrative feasibility is not a prerequisite for class certification under Rule 23(a), if a district court reaches Rule 23(b), and the action involves a proposed Rule 23(b)(3) class, the court may consider administrative feasibility. Thus, under Rule 23(b), a district court must consider the following questions: Would a class action create more manageability problems than its alternatives? How do the manageability concerns compare with the other advantages or disadvantages of a class action?
Ultimately, the Eleventh Circuit in Cherry declined to find that administrative feasibility was a perquisite for class certification under Rule 23. In its decision, however, the Court of Appeals granted discretion to district courts under Rule 23(b) to weigh administrative feasibility when determining the manageability of a potential class. Whether, and to what extent, this decision is a blessing to the plaintiff or defense bar remains to be seen, but it remains less than a decisive win for either.
Author: Robert Barry