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May 9 — A recent Eighth Circuit decision reinstating class claims over unsolicited fax ads creates a new class membership test and widens a circuit split, a defense attorney tells Bloomberg BNA.
David Almeida said the U.S. Court of Appeals for the Eighth Circuit adopted a “circular and essentially meaningless ascertainability requirement” by defining the implicit test as whether class members are “clearly ascertainable.”
Almeida, a partner in Sheppard, Mullin, Richter & Hampton LLP's Chicago office who specializes in consumer class actions, said this is a third version of the ascertainability standard, distinct from the Third Circuit's “strict” test and the Seventh Circuit's “weak” test.
But plaintiffs' attorney Michael R. Reese of Reese LLP in New York and civil procedure professor Tanya Pierce tell Bloomberg BNA it appears that the Eighth Circuit is basically adopting the Seventh Circuit's approach.
The Eighth Circuit is rightfully reluctant to impose a stringent test, “as ascertainability is not mentioned anywhere in the text of Rule 23 and, indeed, runs counter to the basic principles underlying Rule 23,” Reese said in a May 5 e-mail.
Reese is a consumer protection class action attorney and an adjunct professor at Brooklyn Law School.
Sandusky Wellness Center LLC filed a class action under the Telephone Consumer Protection Act, 47 U.S.C. § 227, alleging MedTox Scientific Inc. sent unsolicited fax advertisements.
The Eighth Circuit told the lower court to take another look at its denial of class certification. It held May 3 that members of the class could be identified through the defendant's fax records, in Sandusky Wellness Ctr. LLC v. MedTox Scientific Inc., 8th Cir., No. 15-1317, 5/3/16 (see related story).
Ascertainability doesn't appear in the rule that governs class actions, Fed. R. Civ. P. 23.
But many courts include it as an implied prerequisite when considering whether a class should be certified. A circuit split has emerged, illustrated by two false advertising suits involving dietary supplements.
The Third Circuit required that sales records—or other reliable evidence of product purchases identifying class members—be available for a class to be found ascertainable in Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013) (14 CLASS 1058, 9/13/13).
The Seventh Circuit roundly rejected the Third Circuit's Carrera strict standard for identifying class members in its July 2015 ruling in Mullins v. Direct Digital LLC, 795 F.3d 654 (7th Cir. 2015).
The Seventh Circuit held that as long as the class definition is spelled out clearly and objectively, ascertainability is met. The court also endorsed class members' ability to self-identify through affidavits when other means of identification aren't available.
The U.S. Supreme Court denied review of that case in February (17 CLASS 249, 3/11/16).
The Eighth Circuit in Sandusky acknowledged this split but said it, “unlike most other courts of appeal, has not outlined a requirement of ascertainability.”
The appeals court went on to say, “this court adheres to a rigorous analysis of the Rule 23 requirements, which includes that a class ‘must be adequately defined and clearly ascertainable.'”
So is this a new test? A non-test?
Defense attorney Almeida said in a May 5 e-mail that the Eighth Circuit “goes to the left of the Seventh Circuit,” creating an even weaker test.
Because the decision “provided no meat to its analysis,” he said the district courts in the Eighth Circuit could “completely abandon any analysis of ascertainability whatsoever.”
But Professor Pierce disagreed, saying the Eighth Circuit's approach is consistent with the Seventh Circuit's.
“Both focus on whether the class is adequately defined, rather than whether it would be difficult to identify particular members of an adequately defined class,” she said in a May 9 e-mail.
Neither court's approach “requires plaintiffs to prove there exists an administratively feasible mechanism to determine just who the class members are,” as the Third Circuit does, she said.
Almeida said the Sandusky decision points to the need for the Supreme Court to settle the split.
“We now have three different versions of ascertainability, despite the fact that Rule 23 is supposed to be uniformly applied throughout the federal courts,” he said.
“It has gotten to the point where the same putative class will receive wildly varying receptions depending on the Circuit in which the case is filed.”
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