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Circuit Split Deepens as Eleventh Circuit Holds Administrative Feasibility is Not a Requirement for Class Certification

On February 2, 2021, the Eleventh Circuit reversed the district court’s denial of class certification for failure to prove an administratively feasible method to identify absent class members. The Eleventh Circuit’s rejection of administrative feasibility as a prerequisite to certification under Federal Rule of Civil Procedure 23 has deepened a circuit split on the issue.

In Cherry v. Dometic Corporation, the plaintiffs brought a putative class action on behalf of purchasers of allegedly defective gas-absorption refrigerators used in recreational vehicles. The proposed class consisted of all individuals who had purchased certain models of the defendant-manufacturer’s refrigerators in selected states.  The main issue at the class-certification stage was whether the proposed class satisfied the ascertainability requirement of Rule 23. This requires class representatives to establish that their proposed class is “adequately defined and clearly ascertainable” before obtaining class certification.

The plaintiffs argued that they satisfied Rule 23’s implicit ascertainability requirement by defining the class with objective criteria. They also argued that Rule 23 does not require administrative feasibility—a concept related to ascertainability. The defendant contended that ascertainability requires proof of administrative feasibility and that the plaintiffs failed to provide any evidence demonstrating a feasible method without overwhelming individual inquiry to identify absent class members, thus requiring denial of class certification. The district court agreed and denied class certification for failure to prove administrative feasibility.

In its reversal of the district court’s ruling, the Eleventh Circuit acknowledged the circuit split on the issue of whether administrative feasibility is a requirement for class certification. While the Court acknowledged that it had previously addressed the issue in unpublished decisions that applied a heightened standard for ascertainability—under which proof of ascertainability encompasses both the definition of a class and its administrative feasibility—it noted that it was not bound by those decisions as precedent. Finding that neither Eleventh Circuit precedent nor the text of Rule 23 establishes administrative feasibility as a requirement for class certification, the Court concluded that “[p]roof of administrative feasibility cannot be a precondition for certification.”

The Eleventh Circuit acknowledged that class representatives must establish that a proposed class is “adequately defined and clearly ascertainable” before the district court can consider whether the enumerated prerequisites of Rule 23(a) are satisfied. However, because membership can be determined without such a determination necessarily being convenient, administrative feasibility is not an inherent aspect of ascertainability. The Court also held that neither the text of Rule 23(a) nor 23(b) requires proof of administrative feasibility. And, while Rule 23(b)(3)(D) requires the court to “consider the likely difficulties in managing a class action” when deciding whether a class action is superior to other available methods for adjudication, Rule 23(b)(3) “does not permit district courts to make administrative feasibility a requirement.” The Eleventh Circuit concluded that manageability problems alone will rarely be sufficient to prevent class certification.

With this ruling, the Eleventh Circuit joins the Second, Sixth, Seventh, Eighth, and Ninth Circuits in deciding that administrative feasibility is not a prerequisite for class certification under Rule 23. For now, plaintiffs in the Eleventh Circuit will face fewer hurdles to class certification based on administrative feasibility as compared to plaintiffs in the First, Third, and Fourth Circuits, which have all held that administrative feasibility is a prerequisite. For defendants in the Eleventh Circuit, however, not all is lost, as administrative feasibility still can be considered during certification, although it is not dispositive. One thing is certain: the widening circuit split, with most circuits taking a stance on the issue, cries out for Supreme Court resolution.

© 2021 Proskauer Rose LLP. National Law Review, Volume XI, Number 89
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About this Author

Antonieta Lefebvre Litigation Attorney Proskauer Law Firm
Associate

Tonie Pimienta Lefebvre is an associate in the Litigation Department. She has experience in a broad spectrum of complex civil and criminal matters, including white collar criminal defense and related civil litigation, internal investigations, contract disputes, fraud, unfair competition and business torts. In addition, Tonie maintains a diverse pro bono practice, focusing on issues relating to prisoners’ rights and fair housing.

Prior to joining Proskauer, Tonie clerked for the Honorable Yvonne Gonzalez Rogers of the U.S. District Court for the Northern District of California. At...

310-557-4530
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