Class Membership Test Won't Get Supreme Court Look

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By Perry Cooper

Feb. 29 — The U.S. Supreme Court declined Feb. 29 to consider how strict the test should be for determining who is a member of a class for certification purposes.

The top court, in refusing to review a dietary supplement consumer suit, passed on what one defense attorney said was its best chance this term to rule on ascertainability, an issue that many say has divided the federal courts of appeal.

The Third Circuit requires that sales records—or other reliable evidence of product purchases identifying class members—must be available for a class to be found ascertainable. The Sixth and Seventh Circuits have rejected that strict approach.

The Sixth Circuit, and Seventh Circuit below in this case, both stayed dietary supplement suits while defendants challenged ascertainability at the Supreme Court, perhaps expecting that review was likely .

But defense attorney Jonathan R. Chally told Bloomberg BNA in a Feb. 29 e-mail that he wouldn't read too much into the stays.

Although the Seventh Circuit focused on the split, the plaintiffs “went to great lengths to downplay” it in briefs before the Supreme Court, Chally, a partner at King & Spalding in Atlanta, said.

“My guess—and you can only guess when it comes to trying to explain why cert was denied—is that the respondent was effective in this regard,” he said.

Could this denial have something to do with the court's cooling interest in limiting the class action device after the death of its most vocal opponent, Justice Antonin Scalia?

One consumer advocate says probably not.

“While it is clear that Justice Scalia was not favorable to class actions, whether he would have adopted an argument that had no basis in Rule 23 itself seems unlikely given that it is contradictory to his steadfast notion of orginalism,” Maia Kats, director of litigation at the Center for Science in the Public Interest in Washington, told Bloomberg BNA in a Feb. 29 e-mail.

Not in Rule 23

Ascertainability is an implied prerequisite to class certification that doesn't appear in Fed. R. Civ. P. 23, the rule that governs class actions.

“Rule 23 expressly sets forth the requirements for certification, and ascertainability is not and never was among them,” Kats said.

“I think the denial of cert in Mullins is a clear indication that challenges to class certification, and class actions more generally, cannot encompass factors that are extraneous to Rule 23 itself,” she said.

Plaintiffs' attorney Michael R. Reese of Reese LLP in New York agreed that denial of certiorari wasn't unexpected.

“Ascertainability is a dubious concept, as it appears nowhere in Rule 23 and seems to run counter to the language and spirit of the Rule itself,” he told Bloomberg BNA in a Feb. 29 e-mail.

“Moreover, ascertainability as applied by some courts could have an adverse disparate impact on some minority groups that do not use credit cards to the same extent as other groups,” he said. Credit card receipts create a better paper trial for identifying class members.

Perceived Circuit Split

The Third Circuit established a strict standard for ascertainability in 2013 in yet another consumer suit over weight-loss supplements.

It held in Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013) , that sales records or other reliable evidence of product purchases identifying class members must be available for a class to be found ascertainable.

The Seventh Circuit roundly rejected the Third Circuit's Carrera strict standard for identifying class members in its July 2015 ruling in Mullins.

It 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, which is often the case in false advertising suits over consumer goods.

The Sixth Circuit followed suit in an August 2015 ruling in Rikos v. Procter & Gamble Co., 2015 BL 268080, No. 14-4088, 8/20/15.

But Chally doesn't see the circuit split as significant.

“The Third Circuit’s approach was defendant-friendly, to be sure, but it did not announce a new standard,” he said. “That means that one could harmonize Carrera and Mullins, and downplay the extent of a circuit split.”

Another Chance?

The Supreme Court has another opportunity this term to get ascertainability on its docket. Procter & Gamble is seeking review of the Sixth Circuit's decision, No. 15-835, cert. petition filed 12/28/15.

But that petition is unlikely to be granted solely on ascertainability grounds, Chally said.

The Sixth Circuit, like the Seventh, described what it perceived as a circuit split on the issue, and refused to follow the Carrera approach, he said.

But Rikos offers the court other grounds for granting review, he said.

“In other words, ascertainability was not the focus in Rikos, as it was in Mullins, so one could conclude that if the court intends to address ascertainability soon, was the better vehicle to do so,” he said.

To contact the reporter on this story: Perry Cooper in Washington at

To contact the editor responsible for this story: Julie A. Steinberg at

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