By Joshua L. Becker, a partner, and Caroline M. Gieser, an associate, in the Atlanta, GA office of Shook, Hardy & Bacon L.L.P.
On February 2, 2022, the U.S. Court of Appeals for the Eleventh Circuit in Cherry v. Dometic Corporation, 986 F.3d 1296 (11th Cir. 2022), addressed whether putative class representatives must prove an administratively feasible method of identifying absent class members as a precondition for class certification under Federal Rule of Civil Procedure 23. The Eleventh Circuit’s holding that proof of administrative feasibility is not required puts it in line with the Second, Sixth, Seventh, Eighth, and Ninth Circuits. This contrasts with the First, Third, and Fourth Circuits.
The Cherry plaintiffs sued Dometic, which sells RV refrigerators that are intended to operate even when not connected to electricity. Some of these refrigerators allegedly contained a defect that increased the risk that a chemical that creates a risk of fire in the RV would leak. Dometic issued a limited recall for some of its refrigerators. Following that recall, 18 customers sued Dometic in the Southern District of Florida, on behalf of themselves and a putative multi-state class, alleging the defect was more pervasive than what was covered by the limited recall, that Dometic knew about this, and it hid the breadth of the issue. The plaintiffs moved under Rule 23(b)(3) to certify a class of “all persons who purchased in selected states certain models of Dometic refrigerators that were built since 1997.”
Dometic opposed class certification because, among other reasons, the plaintiffs had failed to put forth any evidence that identifying class members was administratively feasible and thus they could not show the class was ascertainable. Under Eleventh Circuit law, before a district court may analyze whether the requirements of Rule 23(a) are met, the putative class must be “defined and clearly ascertainable.” Little v. T-Mobile USA, Inc., 691 F.3d 1302, 1304 (11th Cir. 2012).
In support of their motion, the plaintiffs argued that the proposed class was ascertainable because the class definition set forth objective criteria for identifying putative class members and the class was therefore administratively feasible. But the District Court sided with Dometic and held that the putative class representatives had not proffered adequate evidence of administrative feasibility of identifying class members. It further held that with class certification denied, it had to dismiss the case without prejudice for lack of subject matter jurisdiction because the Class Action Fairness Act (“CAFA”) no longer applied.
The Eleventh Circuit reversed, maintaining that ascertainability is an “implied prerequisite to Rule 23,” but holding that while administrative feasibility remains “relevant to whether a proposed class may proceed under Rule 23(b)(3),” it is not required for class certification.
Turning first to the plain language of Rule 23(a), the court reasoned that administrative feasibility does not affect the court’s ability to determine whether the requirements of that subsection—numerosity, commonality, typicality, and adequacy of representation—have been met. Turning next to Rule 23(b), the court reasoned that the administrative feasibility of identifying class members is relevant to the analysis of whether a class action is the superior method for fairly and efficiently adjudicating the case. Nevertheless, the Eleventh Circuit held that administrative feasibility cannot be a requirement because Rule 23(b)(3) merely imposes a balancing test of factors to determine whether a class action is the superior method for handling the case.
Accordingly, while holding that ascertainability is “limited to its traditional scope,” of whether a proposed class is defined such that it is capable of determination, the court also held that if a district court reaches the analysis of Rule 23(b), and the action involves a proposed Rule 23(b)(3) class, “it may consider administrative feasibility as part of the manageability criterion of Rule 23(b)(3)(D).” If, at that stage, there appears to be “unusually difficult manageability problems,, a district court may “insist on the details of the  plan for notifying the class and managing the action.” Nevertheless, “[a]dministrative feasibility alone will rarely, if ever, be dispositive, , but its significance will depend on the facts of each case.”
Finally, the court also held that the District Court erred in dismissing the case for lack of subject matter jurisdiction because jurisdiction under CAFA does not hinge on class certification – the district court maintains jurisdiction even if it denies class certification. Wright Transp. Inc. v. Pilot Corp., 841 F. 3d 1266, 1271 (11th Cir. 2016).
The court’s holding that proof of administrative feasibility is not required lowers the bar for class certification in this circuit. However, given the pronounced circuit split on this issue, the need for proof of administrative feasibility is ripe for review by the U.S. Supreme Court.