In Cherry v. Dometic Corp., the Eleventh Circuit Court of Appeals held that, when addressing a motion for class certification, courts may consider whether the named plaintiff has demonstrated an administratively feasible method for identifying absent class members, but administrative feasibility is not a standalone requirement. In reaching its decision, the Eleventh Circuit waded into the existing circuit split regarding administrative feasibility. Three circuits have now issued published opinions (and the Eleventh Circuit has issued two unpublished opinions) requiring putative class members to establish administrative feasibility before finding that a proposed class is ascertainable, while several other circuits have held that administrative feasibility is a factor on class certification, but not dispositive.
At the district court, the main issue on class certification was whether the proposed class was ascertainable. The class representatives framed ascertainability as an issue of class definition. They argued that “the proposed class is ascertainable because the class definition relies exclusively on objective criteria.” They also nominally argued that, in any event, class-member identification would be administratively feasible, citing Briseno v. ConAgra Foods, Inc., a Ninth Circuit opinion that rejected administrative feasibility as a requirement for class certification.
The defendant argued that proof of administrative feasibility is required to establish ascertainability, which the class representatives failed to do because they provided no evidence that their method of identification would be workable. The district court agreed with the defendant and denied class certification, citing Karhu v. Vital Pharmaceuticals, Inc.
The circuit court began its analysis by addressing other circuit holdings regarding the role of administrative feasibility. The court noted that the Third Circuit applies a heightened standard, which requires, as part of the ascertainability analysis, proof that identification of class members will be “a manageable process that does not require much, if any, individual factual inquiry.” The First and Fourth circuits also follow this approach, while the Second, Sixth, Seventh, Eighth, and Ninth circuits look at administrative feasibility as part of a greater multifactor analysis.
Given the variance in circuit authority, the court relied on the plain text of Rule 23(a) and (b) to note that “ascertainability” was nowhere to be found in Rule 23(a)’s language, yet it was an implied prerequisite. The court, however, found no such implication for administrative feasibility in Rule 23(a). According to the court, an administrative feasibility requirement “does not follow from the text of Rule 23(a)” because administrative feasibility is not essential to any of the elements of Rule 23(a): qualifications of the putative class members, the typicality of claims and defense, the practicability of joinder of class members, or common questions of law and fact.
Rule 23(b), however, was a different story. The court found administrative feasibility to be relevant when considering class certification under Rule 23(b). Citing Klay v. Humana, Inc., the court stated that Rule 23(b)(3)(D) requires a balancing test to assess the manageability of the class. As such, “[a] difficulty in identifying class members [or administrative feasibility] is a difficulty in managing a class action.” Administrative feasibility, therefore, remains relevant when determining whether to certify a class under Rule 23(b), although it is not a standalone requirement in the Eleventh Circuit.
Given its analysis, the court ultimately vacated the district court’s denial of class certification and remanded for further proceedings. It remains to be seen whether the defendant will seek en banc review in the Eleventh Circuit. What is certain, though, is that the varying law nationally on the importance of administrative feasibility to class certification decisions will be a fertile ground for litigation.