Earlier this year, SHB welcomed the addition of complex litigation boutique Grippo & Elden in Chicago.  We were thrilled at the news because of the deep bench of experienced class action lawyers that were joining our firm, extending our presence and expertise to the Windy City.  One of the talented lawyers in our Chicago office, Chris Wray (a former 8th Circuit clerk to the Honorable Duane Benton), tipped us off about a recent decision from the Seventh Circuit may have created a circuit split on the implicit requirement of ascertainability of Rule 23.  He was kind enough to put together the following guest post:

Several circuits have recognized an implicit requirement under Rule 23 that a class must be defined clearly and that membership be defined by objective criteria. In addressing this requirement, courts have sometimes used the term “ascertainability.”  Class definitions have failed this requirement when they were too vague or subjective, or when class membership was defined in terms of success on the merits.

The Third Circuit has insisted that plaintiffs prove at the certification stage that there is a reliable and administratively feasible way to identify all who fall within the class definition.  The most influential cases for this proposition have been the Third Circuit’s case Marcus v. BMW of North America LLC, 687 F.3d 583 (3d Cir. 2012) and its progeny (Ed note: of course, we posted about the influential Carerra v. Bayer Corp. opinion).  Courts generally just call this requirement “ascertainability,” but commentators have started calling the Third Circuit’s approach “heightened ascertainability.”

Recently, the Seventh Circuit, in Mullins v. Direct Digital, created a circuit split by rejecting this so-called “heightened ascertainability” approach.  The court said that the Third Circuit’s rule had the “effect of barring class actions where class treatment is often most needed: in cases involving relatively low-cost goods or services, where consumers are unlikely to have documentary proof of purchase.”  Mullins, at 4.  The court stated that this “heightened ascertainability” was simply not present in Rule 23, after thoroughly discussing the policy considerations regarding the ascertainability requirement and concluding that the enumerated requirements of Rule 23 adequately balance these considerations without the need for the additional hurdles imposed by Carerra and the courts that have adopted it.

The Seventh Circuit has not backed off of the “ascertainability” requirement – class membership must still be defined by objective criteria.  Mullins just abrogated heightened ascertainability, meaning the requirement that there be a “reliable and administratively feasible way” to identify class members.