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Class Action Ascertainability in the Eleventh Circuit: What Makes the Cut?

On March 19, 2020, Magistrate Judge Goodman recommended certifying a Florida class of purchasers of Prevagen, a memory-enhancement product developed by Quincy Bioscience, LLC.[1]  Plaintiffs’ complaint asserts that Quincy violated Florida’s Deceptive and Unfair Trade Practices Act (FDUTPA) by representing to consumers that Prevagen can improve memory function when that “cannot possibly be true as a matter of body chemistry.”

While the Plaintiffs in this case had not yet conducted discovery, they were able to rely on a robust record developed in a similar Prevagen class-action lawsuit against Quincy in California, where the class had been certified and gone to trial.  Quincy is also the current subject of government enforcement actions by the Federal Trade Commission and the New York Attorney General’s Office, and a defendant in four other Prevagen-related class-action lawsuits.

In recommending class certification, Judge Goodman relied on Karhu v. Vital Pharm., Inc.,[2] an unpublished Eleventh Circuit opinion, which holds that “a class is not ascertainable unless the class definition contains objective criteria that allow for class members to be identified in an administratively feasible way.”

In Karhu, the court rejected certification because the plaintiff had not presented any specific proposal as to how the identification of class members would successfully operate. The Eleventh Circuit explained that a plaintiff cannot establish that class members are ascertainable “simply by asserting that class members can be identified using the defendant’s records” or “proposing that class members self-identify (such as through affidavits).”

In this case, unlike in Karhu, the Plaintiffs submitted a 12-point plan for satisfying the ascertainability requirement under the administratively feasible protocol discussed in Karhu.  The proposal was also supported by evidence that it could be successful.

For example, Quincy confirmed that it maintains customer records that include the direct customer’s name, email address, and billing and/or street address. Quincy further confirmed that it collects consumer testimonials on non-direct sales that would also contain customer contact information. Plaintiffs served subpoenas on the four main Prevagen retailers in Florida requesting information about Prevagen purchasers.  Plaintiffs also filed affidavits from retailers like Vitamin Shoppe and Amazon, explaining that they had information from rewards programs to help identify class members. Finally, Judge Goodman noted, while class members would be able to self-identify through proofs of purchase or affidavits, those could be cross-referenced with the other data collected and therefore subjected to fraud-prevention checks.

As Judge Goodman points out, “[h]ad the plaintiff in Karhu taken the steps which the Plaintiffs took here, then he may well have satisfied the ascertainability requirement.”

This is in line with the rulings of several district courts in Florida who have applied Karhu and rejected certification.  See, e.g., Wasser v. All Mkt., Inc., 329 F.R.D. 464, 474 (S.D. Fla. 2018) (class not ascertainable because, inter alia, class proffers no evidence to “establish that the [third party] records are in fact useful for identification purposes” and “the proposal to identify class members by submission of receipts or containers… is unlikely to capture more than a handful of class members.”); Melton v. Century Arms, Inc., No. 16-CV-21008, 2018 WL 6980715, at *6–7 (S.D. Fla. Nov. 28, 2018) (same); Daniel v. Navient Sols., LLC, No. 8:17-CV-2503-T-24JSS, 2019 WL 4671169, at *6 (M.D. Fla. Apr. 26, 2019) (class not ascertainable where Plaintiffs sought to have putative class members “self-identify” as having “received affirmative misrepresentations from [Defendant]”); Sliwa v. Bright House Networks, LLC, 333 F.R.D. 255, 272 (M.D. Fla. 2019) (same).

[1] See Collins v. Quincy, Case No. 1:19-cv-22864-MGC, ECF No. 119

[2] 621 F. App’x 945, 946 (11th Cir. 2015)

© 2020 Bilzin Sumberg Baena Price & Axelrod LLP


About this Author

Ilana Drescher, Bilzin Sumberg Law Firm, New Jersey, Corporate and Litigation Law Attorney

Having served as a law clerk to Judge William J. Martini of the U.S. District Court for the District of New Jersey, Ilana leverages her firsthand federal court experience when handling her cases. During her tenure as a law clerk, Ilana managed a diverse caseload including a major antitrust trial. Ilana guides clients through complex business litigation and antitrust disputes.

A strong writer, Ilana honed the art of persuasive writing during her time with the Court and as a member of the Executive Board for the Journal of Legislation and Public...

Lori Lustrin, Commercial Litigation Attorney, Bilzin Sumberg Law Firm

Lori is a general commercial litigator who focuses on complex class-action and plaintiff opt-out antitrust litigation in federal court. In addition to antitrust work, her class action experience includes defending clients in the consumer products, homebuilding, real estate investment, and food and beverage industries.

Lori has also taken an interest in the emerging area of healthcare antitrust litigation and she has authored several articles on the subject. In addition to her varied federal court work, Lori has substantial experience in complex business litigation throughout the country, and has litigated cases involving intellectual property disputes, landlord-tenant disputes, land use disputes, bankruptcy issues, employment disputes, professional malpractice actions, unfair and deceptive trade practices issues, fraud, defamation, and products liability. Lori also has significant experience in alternative dispute resolution proceedings, including international arbitrations.

Melissa Pallet-Vasquez, Litigation Attorney, Bilzin Sumberg Law Firm

Melissa Pallett-Vasquez is a Partner in Bilzin Sumberg's Litigation Group. She handles complex commercial litigation matters, class actions and arbitrations, often on behalf of clients from Canada. Melissa represents clients in a number of areas including real estate-related contracts, partnership and joint venture agreements, defense of intentional tort claims, internal investigations and intellectual property litigation. Melissa has substantial courtroom experience, including numerous federal and state trials, as well as international and domestic arbitrations, and in...