Antitrust and Unfair Competition Law

Competition: Spring 2017, Vol 26, No. 1


By Geoffrey Holtz and Nitin Jindal1


In the last several years, nine federal courts of appeal have weighed in on whether determining the "ascertainability" of the proposed class is a relevant consideration at the class certification stage of a Rule 23(b)(3) damages case. This issue generally arises where the proposed class is large and disbursed, such as a class of retail consumers who purchased a product at a price that is alleged to have been elevated due to unlawful conduct, a claim that often arises in the context of antitrust or consumer fraud claims.

The circuit courts have diverged significantly on the issue of whether, as a component of the consideration of class certification under Rule 23 of the Federal Rules of Civil Procedure, a district court must determine whether the proposed class is "ascertainable"—i.e., whether the class is defined such that one can objectively determine who is a member, and whether there is an administratively feasible method to make that determination and provide notice to the class members as required by the Due Process Clause. Certain circuits have held that a class may not be certified unless the plaintiff demonstrates that the class is ascertainable, while other circuits have held that this is not a relevant consideration at all at the class certification stage.

The current circuit split on such an important issue is not tenable. As antitrust and class action practitioners generally are well aware, the class certification determination is often the dispositive decision in a case. In a category of consumer class action cases, that determination is now almost entirely dependent on the judicial circuit in which the case is filed. This promotes forum-shopping, which sound jurisprudence frowns upon. And with antitrust class actions often subject to district court assignment by the Judicial Panel on Multidistrict Litigation, the Panel’s assignment decision can effectively decide the ultimate fate of the case.

In this article, we describe the current circuit split and define the relevant due process and Rule 23 considerations identified by the Supreme Court and courts of appeal that must factor into the question of ascertainability at the class certification stage. These considerations are often in direct conflict with one another. To date, none of the circuit courts that have addressed the ascertainability issues have properly considered all of the relevant due process and other considerations, with certain courts ignoring some key considerations and other courts ignoring different considerations. No circuit court has yet properly considered and worked to reconcile all of the relevant factors.

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We do not purport to propose the "right answer" to these questions here. Rather, our purpose is to identify the relevant due process and other considerations that should factor into the analysis and point out where the two camps of circuit courts have fallen short in their analyses in the decisions to date. If the circuit courts cannot bridge the gap with uniform guidance that properly takes into account all considerations relevant to the ascertainability issues, the Supreme Court needs to do so to resolve the current circuit split.


The term "ascertainability" in the context of class certification has been used inconsistently and imprecisely by the courts and commentators who have addressed the issues. Thus, we begin with some definitions and first principles to delineate the issues at hand.

The concerns relevant to this article arise in the context of a class action seeking damages, a Rule 23(b)(3) action. The requirements under the text of Rule 23 for maintaining a damages class action are familiar. First, the general prerequisites of Rule 23(a)—applicable to all class actions—must be satisfied:

(a) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if:

(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.2

If the court determines these prerequisites have been met, the additional requirements under Rule 23(b)(3) must then be satisfied:

(b) (3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include:

(A) the class members’ interests in individually controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
(D) the likely difficulties in managing a class action.3

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The plaintiff has the burden to establish that these requirements have been met in order for the court to certify the case to proceed as a class action.4

Beyond the requirements set forth in the text of Rule 23, courts have required that additional criteria be satisfied in order to certify a Rule 23(b)(3) damages class—sometimes expressed as an implicit component of one of the express requirements of the rule and sometimes not. For example, the class may not be defined in a way that precludes membership unless the defendant’s liability is first established—e.g., a class definition such as "persons who are entitled to damages as a result of the defendant’s conduct"—a so-called "fail-safe class." In Randleman v. Fidelity Nat’l Title Ins. Co., 646 F.3d 347 (6th Cir. 2011), the class definition was flawed because it only included those who were "entitled to relief." As the court explained, "[t]his is an improper fail-safe class that shields the putative class members from receiving an adverse judgment. Either the class members win or, by virtue of losing, they are not in the class and, therefore, not bound by the judgment."5

In addition, a class in which membership is dependent on a putative class member’s state of mind or other subjective measure is too imprecise to certify. In Simer v. Rios, 661 F.2d 655 (7th Cir. 1981), a class consisting of persons who failed to apply or were discouraged from applying for public assistance because of invalid regulations was too indefinite for class certification. As the court explained, determining class membership would first require that those individuals who qualified for assistance be identified, which would itself be a tall order. "After completing this task, the court and parties would have to proceed with the Sisyphean task of identifying those individuals who not only qualified for CIP assistance, but also knew of the existence of the regulation and were discouraged from applying for assistance because of the" flawed regulation.6

A proposed class also may not be so broad as to include a significant number of class members who suffered no injury. One might avoid the problems addressed in the previous paragraphs by simply defining every class as "each and every individual residing in the United States," which would certainly be objectively specific and avoid the fail-safe concerns. However, this would raise all sorts of problems with providing notice, classwide proof, and manageability. Therefore, if "a class is defined so broadly as to include a great number of members who for some reason could not have been harmed by the defendant’s allegedly unlawful conduct, the class is defined too broadly to permit certification."7 Thus, for example, in a claim involving an alleged conspiracy among freight railroads to fix shipping prices, the D.C. Circuit vacated an order certifying a class that included shippers operating under "legacy" contracts that set their rates before any alleged antitrust violation and could not have been injured by it. The presence of so many "false positives" can preclude class certification where the plaintiffs are unable to prove, through common evidence, that all class members were in fact injured by the alleged conspiracy.8 Nonetheless, the First Circuit has held that a "de minimis" number of uninjured class members does not defeat class certification9 although the precise line between a de minimis number and one that is too large to proceed as a class action remains uncertain.

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Thus, the umbrella term "ascertainability" embraces a number of issues either made expressly a part of the text of Rule 23 or developed by the courts—a class that is defined such that one cannot objectively determine who is, or is not, a member; a class in which membership turns on a liability determination; a class that includes too many members with no injury or right to recover, such that liability cannot be determined on a classwide basis; or a class that would involve too many administrative feasibility problems to justify proceeding on a class basis. Indeed, because of this imprecision in the term, the Ninth Circuit declined to address a purported "ascertainability" requirement in a recent decision.10

With these basic Rule 23 principles in mind, we first describe the recent key circuit court decisions that have addressed the role of the various "ascertainability" issues in the class certification context. The issue of administrative feasibility is generally front and center in these decisions, although the other issues that fall within the "ascertainability" label are also factors.


A. The Third Circuit

1. Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013)11

In Carrera v. Bayer Corp.12 plaintiff sued Bayer Corporation and Bayer Healthcare claiming they falsely and deceptively advertised a certain diet supplement.13 Plaintiff moved to certify a class of Florida consumers under the Florida Deceptive and Unfair Trade Practices Act.14

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Ascertainability was an issue because of disputes regarding the evidence available to prove class membership. It was undisputed that class members were "unlikely to have documentary proof of purchase, such as packaging or receipts."15 Defendants likewise had "no list of purchases because . . . [Bayer] did not sell [the product] directly to consumers."16 Nonetheless, plaintiff offered two methods for identifying class members: affidavits of class members attesting to their purchases, and retailer records of sales made online or with store loyalty or rewards cards.

The court stated that "[a]scertainability mandates a rigorous approach at the outset because of the key roles it plays as part of a Rule 23(b)(3) class action lawsuit."17 Ascertainability is necessary so that potential class members can identify themselves for purposes of opting out of a class.18 The requirement also ensures protection of a defendant’s "due process right to raise individual challenges and defenses" to plaintiffs’ claims by ensuring a defendant’s ability "to test the reliability of the evidence submitted to prove class membership."19

The court also found that ascertainability ensures that parties can identify class members "in a manner consistent with the efficiencies of a class action."20 "If a class cannot be ascertained in an economical and ‘administratively feasible’ manner . . . significant benefits of a class action are lost."21 As a result, the court required that plaintiff provide a method for "determining whether someone is in the class" in a manner that was "administratively feasible."22 The need for "individualized fact-finding or mini-trials" to determine class membership would not meet that standard.23

The court then rejected both methods of establishing ascertainability offered by plaintiffs. The court found there was no evidence that retailer records existed that could establish membership in the class.24 The court also found that plaintiff could not rely on consumer affidavits, as the named plaintiff’s own deposition testimony "suggest[ed] that individuals will have difficulty accurately recalling their purchase[]."25 This deficiency would prevent defendants from being able to adequately challenge class membership.

Plaintiff argued that ascertainability of specific purchases was less important in the case at hand, because records existed establishing defendants’ total sales and thus defendants’ total liability could be established.26 The court disagreed for two reasons. First, the court found that it would be "unfair to absent class members if there is a significant likelihood their recovery will be diluted by fraudulent or inaccurate claims" and that there was the "possibility" that plaintiff’s proposed reliance on "affidavits [would] dilute the recovery of true class members."27 Second, the court found that "[i]f fraudulent or inaccurate claims materially reduce[d] true class members’ relief, these class members could argue the named plaintiff did not adequately represent them because he proceeded with the understanding that absent members may get less than full relief."28 Because absent class members would not be bound by the judgment in such a circumstance, they could bring a new action against defendant where principles of issue preclusion could prevent defendant from relitigating liability.29 A defendant "has a substantial interest in ensuring this does not happen."30

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Finally, the court rejected plaintiff’s claim that a screening method could be used to ensure that defendants only paid claims based on reliable affidavits, as the plaintiff did not present evidence of the effectiveness of a specific screening method that could be effectively applied to the instant case.31

The court thus remanded and directed the district court to allow plaintiff the "opportunity to submit a screening model specific to this case and prove how the model will be reliable and how it would allow [defendants] to challenge" the proposed affidavits.32

2. Byrd v. Aaron’s Inc., 784 F.3d 154 (3d Cir. 2015)

In Byrd v. Aaron’s Inc.,’33 plaintiff alleged that Aaron’s Inc. and its franchisees unlawfully used spyware to secretly access the computers they sold in violation of the Electronic Communications Privacy Act of 1986, 18 U.S.C. section 251. Plaintiff moved to certify a class of (a) purchasers and lessees of computers sold by defendants on which the spyware was used, as well as (b) the purchasers’ and lessees’ household members.34

Relying on Carerra, the court stated that the "ascertainability inquiry is two-fold," requiring that "(1) the class is ‘defined with reference to objective criteria’"; and "(2) there is ‘a reliable and administratively feasible mechanism for determining whether putative class members fall within the class definition.’"35

This time, the Third Circuit found that plaintiff met both criteria and distinguished the evidence provided by plaintiff from the evidence rejected in Carrera. The Byrd plaintiff presented "various ways in which [legitimate class members] could be defined and how relevant records could be used to verify [their] identity."36 Unlike Carerra, which rejected "unverifiable affidavit[s]" and found an "absence of any methodology that [could] be used later to ascertain class members,"37 defendants’ "own records reveal the computers upon which [the spy software] was activated, as well as the full identity of the customer who leased or purchased each of those computers."38

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The court also found that identifying household members of purchasers and lessees based on their shared addresses was administratively feasible. The court clarified that Carrera did "not suggest that no level of inquiry as to the identify of class members can ever be taken," because if that were the case, no "class could ever be certified."39 "[I]n most successful class actions," individual verification of class membership would be necessary to administer the fund.40 Finally, unlike in Carrera, defendants’ due process rights would not be violated because plaintiff was "not relying solely on unverified affidavits to establish ascertainability"; defendants could "challeng[e] the evidence [plaintiffs] propose[d] to use."41

As a result, plaintiff had established ascertainability. The evidence and methodology proposed was a "far cry" from what was presented in Carrera.42

B. The Eleventh Circuit—Karhu v. Vital Pharm., Inc., 621 F. App’x 945 (11th Cir. 2015)

The Eleventh Circuit followed Carrera‘s lead in an unpublished opinion in Karhu v. Vital Pharmaceuticals, Inc.43 In Karhu, plaintiff brought a class action against Vital Pharmaceuticals, Inc. alleging it falsely marketed a dietary supplement in violation of the Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301-12, and the Florida Deceptive and Unfair Trade Practices Act.44 Plaintiff sought to certify a nationwide class of purchasers of the supplement as well as a sub-class of New York purchasers under New York General Business Law Section 349.45

Citing Carerra, the court required plaintiff to "propose an administratively feasible method by which class members can be identified."46 Plaintiff’s "asserti[on] that class members can be identified using the defendant’s records" was insufficient to meet this standard.47 Plaintiff needed to, but did not, "establish that the records [we]re in fact useful for identification purposes" and that "identification [would] be administratively feasible."48 Defendant’s sales data "identified mostly third-party retailers, not class members," and plaintiff had not explained how additional records might be used to ultimately identify class members.49

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The court also rejected mere reliance on self-identification to meet the ascertainability standard—a plaintiff needed to also establish that self-identification was administratively feasible "by proposing a case-specific and demonstrably reliable method for screening each self-identification."50 However, the court described self-identification as problematic:

On the one hand, allowing class members to self-identify without affording defendants the opportunity to challenge class membership provide[s] inadequate procedural protection to… [d]efendant[s] and "implicate[s their] due process rights . . . ." On the other hand, protecting defendants’ due-process rights by allowing them to challenge each claimant’s class membership is administratively infeasible, because it requires a series of mini-trials just to evaluate the threshold issue of which [persons] are class members.51

The court stated that a plaintiff needed to explain how a method based on self-identification would avoid this problem, but offered no guidance on how that might be accomplished.52 In the case at hand, plaintiff had not made "a specific proposal as to how identification via affidavit would successfully operate."53

Finally, the court rejected plaintiff’s argument that "a strict ascertainability requirement will eradicate small-dollar class-action claims."54 The court pointed to In re Scotts EZ Seed Litig, No. 12-cv-4727 (S.D.N.Y. Jun. 15, 2012) as an example where class members could be identified by the customer records of third-party retailers.55 The court noted that plaintiff could have similarly established ascertainability with third-party retailer sales records.56 Because plaintiff had not, class certification was properly denied.

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C. The Second Circuit—Brecher v. Republic of Arg., 806 F.3d 22 (2d Cir. 2015)

In Brecher v. Republic of Argentina,57 a class of bondholders sued the Republic of Argentina for defaulting on debt Argentina issued. Liability was not contested, and to avoid difficulties in determining damages, the district court agreed with plaintiffs that the class definition could be expanded from individuals who held beneficial interests in a particular bond series from the date of the complaint through the date of final judgment to individuals who held beneficial interests in that bond series at any time, i.e., without any limitation as to time held.58 Defendant argued that the new class definition was not ascertainable.59

The court agreed that there was an "implied requirement of ascertainability" in Rule 23.60 The court noted that it had not previously "defined" the requirement, and "clarif[ied] that the touchstone of ascertainability is whether the class is ‘sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member.’"61 "’A class is ascertainable when defined by objective criteria that are administratively feasible and when identifying its members would not require a mini-hearing on the merits of each case.’"62

The court did not apply the "administratively feasible" standard it defined, nor did it discuss the standard’s justifications. Instead, the court focused on ascertainability’s requirement that there be "objective" criteria to "establish the definite boundaries of a readily identified class."63

The court found that the expanded class definition was not ascertainable because it lacked a temporal limitation. Because there was secondary trading of interests in the bonds and the beneficial interest of a given bond could not be traced, the lack of a temporal limitation prevented the court from determining whether the class included any given individual who at some time may have had a beneficial interest in a relevant bond.64 As a result, the district court’s expanded class definition violated the requirement of ascertainability.

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D. The Fourth Circuit—EQT Prod. Co p. Adair, 764 F.3d 347 (4th Cir. 2014)

In EQT Production Co. v. Adair,65 plaintiffs in five classes alleged that EQT Production Co. and CNX Gas Co. unlawfully deprived them of royalty payments from the production of coalbed methane gas. After the district court granted class certification, the Fourth Circuit reversed in part because of the district court’s failure "to rigorously analyze whether the administrative burden of identifying class members . . . would render class proceedings too onerous."66

The court found that Rule 23 "contains an implicit" ascertainability requirement, which requires that a court "can readily identify the class members in reference to objective criteria."67 Although plaintiffs "need not be able to identify every class member at the time of certification," "[i]f class members are impossible to identify without extensive and individualized fact-finding or mini-trials, then a class action is inappropriate."68 The ascertainability standard was not met in the case at hand because ownership interests in relevant gas royalties had changed over time, and there were no records that could be used to ascertain who currently held relevant interests.69 Because of the lack of records, the court had "little conception of the nature of the proposed classes or who may be bound by a potential merits ruling," and did not have "even a rough outline" of the class "size and composition."70

The court instructed the district court on remand to reconsider ascertainability issues, and to "give greater consideration to the administrative challenges it will face when using [] records to determine current ownership, and assess whether any trial management tools are available to ease th[e] process."71

E. The Fifth Circuit—John p. Nat’l Sec. Fire & Cas. Co., 501 F.3d 443 (5th Cir. 2007)

In John v. National Security Fire and Casualty Co.,72 plaintiff claimed that National Security Fire and Casualty Company violated the terms of insurance policies it issued in Louisiana by systematically under-adjusting claims and failing to account for the true costs of repairs. Plaintiff’s complaint sought to certify a class of certain policy holders, but the district court dismissed the class allegation.73

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On appeal, plaintiff argued that the district court could not dismiss the class allegation. The Fifth Circuit disagreed, finding that where "it is facially apparent from the pleadings that there is no ascertainable class," the class allegation can be dismissed from the pleadings.74 The court cited decisions from the Fourth and Seventh Circuit, as well as Moore’s Federal Practice guide, to support its holding that there was an ascertainability requirement.75 Without addressing how the standard might be applied, the court affirmed the dismissal.

F. The Seventh Circuit—Mullins p. Direct Digital, LLC, 795 F.3d 654 (7th Cir. 2015)

In Mullins v. Direct Digital, LLC,76 the Seventh Circuit explicitly declined to follow other circuits in requiring that a plaintiff to prove that identifying class members was "administratively feasible." In Mullins, plaintiff alleged that Direct Digital, LLC fraudulently claimed that its product relieved joint discomfort. Plaintiff alleged that defendant was liable for violating the consumer protection laws of ten states, and sought to certify a class of consumers who purchased defendant’s product.77

The court affirmed the district court’s grant of class certification even though it was not readily apparent yet how class members would be identified. Defendant argued that self-identification through affidavits would be plaintiffs’ only option, and defendant claimed this was insufficient as a matter of law.78 But the court stated that it was too early to decide the issue because it did "not know yet what sales and customer records" defendant had.79 Nonetheless, the court assumed for the purposes of evaluating the district court’s decision that defendant "will have no records for a large number of retail customers" and that many consumers were "unlikely to have kept their receipts" of the "relatively inexpensive consumer good."80 The court thus assumed that self-identification was plaintiff’s only option for identifying class members.

The court found that "[n]othing in Rule 23 mentions or implies th[e] heightened [ascertainability] requirement" used by the Third Circuit.81 The court reasoned that "[t]he policy concerns motivating the heightened ascertainability requirement are better addressed by applying carefully the explicit requirements of Rule 23(a) and especially (b)(3)."82 The "heightened ascertainability requirement upsets" the balance of factors used to determine class certification, as "it gives one factor in the balance absolute priority, with 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" and where "the class device is often essential to overcome" the disincentive "for an individual to bring a solo action."83

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The court then addressed the four policy reasons Catena and other cases had provided for requiring more than just self-identification to prove class membership.84

First, the court found that the desire to achieve "administrative convenience" was adequately addressed by Rule 23(b)(3)’s requirement that a class be "superior to other available methods for fairly and efficiently adjudicating the controversy," the determination of which requires considering "the likely difficulties in managing a class action."85

Second, the court found that the "stringent version of ascertainability" was not necessary to prevent unfairness to absent class members, who might want to pursue an individual claim. The court stated that Rule 23 recognizes that "it might be impossible to identify some class members for purposes of actual notice" and that due process did not always require actual notice at the certification stage.86 The court also noted that in "class actions for low-value claims like this one," "only a lunatic or a fanatic" would litigate the claim individually, "so opt-out rights are not likely to be exercised by anyone planning a separate individual lawsuit."87

Third, the court found that the "stringent version of ascertainability" was not necessary to prevent the claims of bona fide class members from being diluted by erroneous or fraudulent claims. The court reasoned that the risk of dilution was low, "perhaps to the point of being negligible," because the court was aware of "no empirical evidence that the risk of dilution caused by inaccurate or fraudulent claims in the typical low-value consumer class action is significant" and believed that the likelihood of widespread fraudulent claims would be low.88 Even if that was wrong, the court noted that "only a tiny fraction of eligible claimants ever submit claims for compensation in consumer class actions," and thus the risk of dilution was "not so great that it justifies denying class certification altogether, at least without empirical evidence supporting the fear."89 The court further found that courts could use tools to "combat this problem during the claims administration process," including through "claim administrators, various auditing processes, sampling for fraud detection, follow-up notices to explain the claims process, and other techniques tailored by the parties and the court to take into account the size of the claims, the cost of the techniques, and an empirical assessment of the likelihood of fraud or inaccuracy."90 In many consumer class actions, a class claim provided "the only meaningful possibility for bona fide class members to recover anything at all" and a diluted recovery was better than no recovery at all.91

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Fourth, the court found that protecting a defendant’s due process rights did not depend on "whether the identity of class members can be ascertained with perfect accuracy at the certification stage."92 Instead, the due process question is "whether the defendant will receive a fair opportunity to present its defenses when putative class members actually come forward."93 The court found that "[a]s long as the defendant is given the opportunity to challenge each class member’s claim to recovery during the damages phase, the defendant’s due process rights are protected."94

Overall, the court found that the "stringent version of ascertainability does not further any interest of Rule 23 that is not already adequately protected by the Rule’s explicit requirements."95 Moreover, "the costs of imposing the requirement are substantial."96 "The stringent version of ascertainability effectively bars low-value consumer class actions, at least where plaintiffs do not have documentary proof of purchases, and sometimes even when they do."97 The result could cause "significant harm" "by immunizing corporate misconduct."98 Thus, "a district judge has discretion to allow class members to identify themselves with their own testimony and to establish mechanisms to test those affidavits as needed."99

G. The Sixth Circuit—Rikos v. Procter & Gamble Co., 799 F.3d 497 (6th Cir. 2015)

In Rikos v. Procter & Gamble Co.,100 plaintiffs sued Procter & Gamble under various state unfair or deceptive practices statutes because they alleged that a nutritional supplement they purchased did not work as advertised. Plaintiffs sought to certify five single-state classes of purchasers of the product.

Defendant argued that the classes were not ascertainable because there was "no plausible way to verify that any one single individual actually purchased" the product.101Most consumers did not buy the product directly from defendant, but instead purchased it from a commercial retailer.102 Defendant thus argued that there was no "’reliable’ or ‘administratively feasible’ method for identifying the class members" and that class certification should be denied under Carerra.103

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The Sixth Circuit disagreed, noting "the strong criticism [Catteta] has attracted from other courts."104 "It is often the case that class action litigation grows out of systemic failures of administration, policy application, or records management that result in small monetary losses to large numbers of people. To allow that same systemic failure to defeat class certification would undermine the very purpose of class action remedies."105

In the Sixth Circuit, "[f]or a class to be sufficiently defined, the court must be able to resolve the question of whether class members are included or excluded from the class by reference to objective criteria."106 The ascertainability standard was satisfied in a prior case where a class could be "discerned with reasonable accuracy using [d]efendants’ electronic records," even where "the process may require additional, even substantial, review of files."107 Ascertainability was met in Rikos because the proposed class was defined by objective criteria—anyone who purchased the product in five specific states—and the classes could be determined with "reasonable accuracy" from a "substantial review, likely of internal [defendant] data" that "could be supplemented through the use of receipts, affidavits, and a special master to review individual claims."108

Although the court found "no reason to follow" Carerra, the court nonetheless distinguished the case on the facts. Unlike in Carerra, the Rikos defendant’s records in could be used to identify specific purchasers, and affidavits from third parties could be used to verify individual purchases.109 Granting class certification was appropriate.

H. The Eighth Circuit—Sandusky Wellness Ctr., LLC, v. MedTox Sci., Inc., 821 F.3d 992 (8th Cir. 2016)

In Sandusky Wellness Center, LLC, v. MedTox Scientific, Inc.,110 plaintiff sued MedTox Scientific under the Telephone Consumer Protection Act ("TCPA") for allegedly sending unsolicited faxes without an appropriate opt-out notice. Plaintiff sought to certify a class of persons who were sent those faxes.

Defendant claimed the class was not ascertainable because plaintiffs could not identify who was harmed by any given fax and that injury from a single fax could be claimed by multiple people, including potentially the subscriber to the fax number, the owner of the machine, the lessee of the machine, or any user of it.111 The court disagreed, finding that the relevant question under the TCPA was identifying the "recipient" of the fax, and that fax logs showing the numbers that received each fax were "objective criteria that make the recipient clearly ascertainable."112

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The court noted other courts’ requirement of an "administratively feasible mechanism" for determining class membership as well as Mullins‘s rejection of that standard.113 Without discussing the merits of the emerging disagreement, the court found that it had not previously "addressed ascertainability as a separate, preliminary requirement," but instead "adhere[d] to a rigorous analysis of the Rule 23 requirements" including that a class "must be adequately defined and clearly ascertainable."114 Class certification was thus appropriate.

I. The Ninth Circuit—Briseno v. ConAgra Foods, Inc., 844 F.3d 1121 (9th Cir. 2017)

In Briseno v. ConAgra Foods, Inc.,115 consumers from eleven states sought to certify a class of consumers who alleged that a label on a cooking oil sold by ConAgra Foods, Inc. was false or misleading in describing the product as "100% natural." Defendant claimed there was no "administratively feasible" way for consumers to "reliably identify themselves" as class members, as consumers do not generally save grocery receipts and are unlikely to remember details about purchases of low-cost products like the oil at issue.116

The Ninth Circuit followed the Sixth, Seventh, and Eight Circuits in disagreeing that plaintiffs needed to prove an "administratively feasible" method for identifying class members.

The court first noted that the text of Rule 23 did not mention "administrative feasibility," an "omission [that] was meaningful."117 The court further found that imposing an "administrative feasibility" requirement would render Rule 23’s manageability requirement "largely superfluous, a result that contravenes the familiar precept that a rule should be interpreted to give effect to every clause."118

The court then rejected the three reasons provided by the Third Circuit for justifying its "administrative feasibility" requirement. The court heavily cited and relied on the Seventh Circuit’s "sound[] reject[ion]" of the Third Circuit justifications in Mullins.119

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First, the court agreed with Mullins in finding that imposing an "administrative feasibility" requirement to mitigate administrative burdens conflicts with the manageability criterion of Rule 23’s superiority requirement.120 An "administrative feasibility" requirement also conflicts with the presumption that certification should not be denied solely because of manageability concerns, especially given "the variety of procedural tools courts can use to manage the administrative burdens of class litigation."121 The court agreed with Mullins in finding that a standalone administrative feasibility requirement would upset the cost-benefit balancing that the manageability assessment requires.122

Second, the court agreed with Mullins that the "administrative feasibility" requirement was not needed to protect absent class members or to protect legitimate claimants from fraudulent claims. Neither Rule 23 nor due process required actual notice to every class member.123 The court also deferred to what it considered the "reality" of whether notice to absent class members is necessary:

In theory, inadequate notice might deny an absent class member the opportunity to opt out and pursue individual litigation. But in reality that risk is virtually nonexistent in the very cases in which satisfying an administrative feasibility requirement would prove most difficult—low-value consumer class actions. Such cases typically involve low-cost products and, as a result, recoveries too small to incentivize individual litigation. At the same time, an administrative feasibility requirement like that imposed by the Third Circuit would likely bar such actions because consumers generally do not keep receipts or other records of low-cost purchases. Practically speaking, a separate administrative feasibility requirement would protect a purely theoretical interest of absent class members at the expense of any possible recovery for all class members—in precisely those cases that depend most on the class mechanism. Justifying an administrative feasibility requirement as a means of ensuring perfect recovery at the expense of any recovery would undermine the very purpose of Rule 23(b)(3)—"vindication of ‘the rights of groups of people who individually would be without effective strength to bring their opponents into court at all."124

The court found that the risk of fraudulent claims diluting the recovery of legitimate claims "seems low," "especially . . . in class actions involving low-cost consumer goods."125 The court agreed with Mullins that the risk of dilution was low given the "consistently low participation rates in consumer class actions," and cited a study finding that it "is not unusual for only 10 to 15% of the class to bother filing claims."126 Courts also have tools they could use to minimize the risk of fraudulent claims.

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Third, the court found that the "administrative feasibility" requirement was not necessary to protect the due process rights of defendants. Defendants can challenge the standing of class representatives at the certification stage, and can oppose proffered proof as to class representatives "at every stage" of the litigation.127 Defendants would also "have similar opportunities to individually challenge the claims of absent class members if and when they file claims for damages," and Rule 23 "specifically contemplates" that individual analysis "after a finding of liability."128 Reliance on a "self-serving affidavit" as proof of class membership was not problematic at the class certification stage, because if a consumer were to pursue an individual lawsuit, "an affidavit describing her purchases would create a genuine issue if [a defendant] disputed the affidavit, and would prevent summary judgment against the consumer."129 Finally, the court found that if "identification of class members will not affect a defendant’s liability," for example where aggregate liability can be calculated according to defendant’s sales records, a defendant’s "due process interest" is not implicated "at all."130

The court thus rejected an "administrative feasibility" requirement at the class certification stage, reaffirmed the ability of class plaintiffs to rely on self-identification to prove class membership, and affirmed the district court’s grant of class certification.


That the nine Federal Courts of Appeal to have considered the role of "ascertainability" in the class certification determination have split five to four on the question is alone a serious concern. In short, circuit splits on important questions are bad jurisprudence. Two hundred years ago, Justice Joseph Story pointed out that uniformity is a crucial component of the federal courts’ critical role in vindicating federal rights:

A motive of another kind, perfectly compatible with the most sincere respect for State tribunals, might induce the grant of appellate power over their decisions. That motive is the importance, and even necessity, of uniformity of decisions throughout the whole United States upon all subjects within the purview of the constitution. Judges of equal learning and integrity in different states might differently interpret a statute or a treaty of the United States, or even the constitution itself; if there were no revising authority to control these jarring and discordant judgments and harmonize them into uniformity, the laws, the treaties, and the constitution of the United States would be different in different States, and might perhaps never have precisely the same construction, obligation, or efficacy in any two states. The public mischiefs that would attend such a state of things would be truly deplorable, and it cannot be believed that they could have escaped the enlightened convention which formed the constitution.131

[Page 44]

The Supreme Court’s facade is emblazoned with the phrase "Equal Justice Under Law," and equal justice by definition cannot be allowed to turn on the geographic location of the particular court hearing the dispute.

One practical concern about the varying applications of Rule 23 among the circuits is that it encourages forum shopping, which is generally considered to erode the public’s confidence in the judicial system by making the legal system appear arbitrary, with the outcome determined by the particular court that happens to hear the suit.132 With antitrust class actions, which can generally be commenced in any district court given the broad antitrust venue provisions,133 this is a particular concern. Compounding this concern is that antitrust class actions often end up before the Judicial Panel on Multidistrict Litigation in an MDL proceeding for consolidation before a single court for pre-trial proceedings. Thus, the critical—and often dispositive—determination of class certification can turn on the serendipitous assignment by the JPML of the district court that will hear the cases.

This is not a mere hypothetical concern. For example, the Ninth Circuit’s Briseno decision almost certainly would have come out differently—with no class certified—had it been decided in the Second, Third, Fourth, Fifth or Eleventh Circuits. The First Circuit, in its 2015 decision in In re Nexium Antitrust Litigation,134 discussed certification of a putative class of indirect purchasers of a heartburn drug. The plaintiffs had commenced the action in the Eastern District of Pennsylvania—within the Third Circuit—but the JPML transferred the case to the District of Massachusetts—in the First Circuit.135 The First Circuit affirmed the decision to certify a class, finding that the use of absent class member affidavits resolved concerns about ascertainability, while the Third Circuit almost certainly would have reversed the class certification decision had the decision been appealed to that circuit, in which it had originally been filed.

Class action practitioners are fully aware that—with rare exceptions—the decision on class certification is generally the dispositive ruling in a case once the matter has proceeded beyond Rule 12 and summary judgment motions. If the class is certified, the stakes of proceeding to trial have typically become so heightened that a settlement is nearly inevitable. If the class is not certified, that effectively ends the litigation as the small individual remaining stake does not justify further litigation. Few courts have discussed what is nominally a mere procedural ruling in such blunt terms. The Seventh Circuit so observed in reversing a class certification order based on questionable grounds. Facing a certified class which magnifies the risks even on a dubious liability case, defendants "may not wish to roll these dice. . . . They will be under intense pressure to settle."136 Justice Ginsburg has questioned the "alchemy" of permitting Rule 23 "to transform a $500 case into a $5,000,000 award."137

[Page 45]

The Seventh Circuit recognized that the elevated pressure to settle from a certified class can be dispositive and that this reality must factor into the considerations that go into the certification decision: "We do not want to be misunderstood as saying that class actions are bad because they place pressure on defendants to settle. That pressure is a reality, but it must be balanced against the undoubted benefits of the class action that have made it an authorized procedure for employment by federal courts."138

With the stakes from a class certification decision so high and that decision often the de facto end of the case, the outcome of that decision should not depend on the fortuity of the JPML venue assignment or the circuit in which the lawsuit was commenced. Indeed, such geography-based results raise due process concerns in their own right. As the Supreme Court has observed, "[t]he Due Process Clause, by ensuring the orderly administration of the laws, gives a degree of predictability to the legal system that allows potential defendants to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit."139 And even though a district court’s class certification decision is reviewed for abuse of discretion, "[d]iscretion is not whim, and limiting discretion according to legal standards helps promote the basic principle ofjustice that like cases should be decided alike."140 Clear and uniform standards are essential.

While circuit splits will be inevitable, and the Supreme Court cannot resolve every one of them, the role of "ascertainability" in the class certification decision is a recurring one that arises in dozens of cases each year in antitrust and other disputes involving billions of dollars in claimed damages collectively. It is critical that the standards governing these issues be reconciled as the significant differences among the circuits can give rise to forum-shopping and unpredictability. The Supreme Court has already denied certification twice in cases that provided an opportunity to provide uniformity on these questions.141 Unless the circuits are able to reconcile their significant differences on their own, the problems created the differing approaches will continue to give rise to results driven by the forum in which the matter lands, which is not tenable.

[Page 46]


Underpinning the requirements in the text of Rule 23 and the additional class definition criteria required by the courts are basic principles of due process, including due process rights of both absent class members and the defendant.

The primary due process concern relevant to these issues is the right of absent class members to be provided with notice. In Phillips Petroleum Co. v. Shutts, the Supreme Court held that due process restricted the ability of courts to exercise in personam jurisdiction over out-of-state absent class members unless individual notice and an ability to opt out are provided.142 In Eisen v. Carlisle and Jacquelin, the Supreme Court further held that in Rule 23(b)(3) damages actions, class members must be furnished with "the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort."143 This requires individual notice to all members who are reasonably identifiable.144 The "best practicable" method of notice requirement has been incorporated into the text of Rule 23, which provides that absent class members be notified by the "best notice that is practicable under the circumstances."145

The notice requirement also relates to another due process concern. An absent class member cannot be bound by a decision in which he or she was not provided notice and an opportunity to opt out.146 To preclude monetary claims in a later suit by unnamed absent members who did not opt out of an earlier class action, it must be shown that the notice required in a Rule 23(b)(3) class action was provided.147 The courts have held that due process does not require that the absent class member actually receive notice; it is sufficient if the best notice "practicable" was given.148 However, the precise contours of what satisfies the "best notice practicable" standard—particularly with a nationwide antitrust class of hundreds of thousands or millions of potential class members—are unclear. The Supreme Court has counseled that "when notice is a person’s due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it."149 Seldom addressed in the reported case law is another critical application of the notice requirement—notice to class members of the deadline to submit a claim for an award after settlement or judgment in a class action. Plainly due process requires such notice as the claim is generally waived unless submitted.

[Page 47]

On the other side, the defendant in a class action has its own due process rights. As with any civil defendant, a class action defendant has the right to present a defense to both liability and the claimed damages by the class as a whole and each individual class member.150 This right is obviously compromised if the defendant cannot determine who the class members are or if it is prevented from challenging a member’s claim.

More subtle due process issues arise once the class and the defendants have reached a settlement (as is quite often the case after a class is certified), or once a judgment has been entered after trial or otherwise. If the resulting award is tallied on a per-class member basis, then the defendant’s right to challenge the entitlement to or amount of any individual claim is paramount, as each successful challenge will lower the total damages to be paid. On the other hand, if the settlement or award is a fixed amount to be divided among the class members who present valid claims, the interests of the defendant in challenging any individual claim may be lessened, but this arrangement then gives rise to an interest of each class member with a valid claim to maximize his or her individual award by challenging those with invalid claims.151 And the defendant retains an interest in the process as class members who fail to receive adequate notice will not be bound by the settlement or judgment and can bring a second action for damages.

The issues that fall under the umbrella of "ascertainability" thus raise practical concerns for both the litigants and the court. If the class wins at trial (or, more likely, obtains a settlement), how does one go about identifying those entitled to relief, providing them with opt-out and claim notice, and dividing up the award? By contrast, if the defendant prevails, how does one determine who is bound by the result so that the defendant does not risk a second lawsuit based on the same conduct?

The circuit courts that have addressed the ascertainability questions relating to class certification have not fully identified or addressed these concerns. It is critical that when reconciling these differences the courts give full consideration to the issues discussed herein, which involve dueling—perhaps irreconcilable—due process and practical considerations.


While nine circuits have weighed in—in varying degrees of completeness—on the role of "ascertainability" in the class certification decision, no circuit decision to date has properly identified and considered all of the Rule 23 and due process considerations that must be taken into account.

For example, in its Carrera decision, the Third Circuit properly observed that "[a] defendant in a class action has a due process right to raise individual challenges and defenses to claims, and a class action cannot be certified in a way that eviscerates this right or masks individual issues."152 Thus, certification properly requires some reasonable process to permit the defendant to challenge claims submitted by class members in the claims process. But the Third Circuit then rejected the proposed methods which, individually or in combination, may have provided a somewhat reliable method for ascertaining who purchased the offending weight loss product and challenging false claims—examining retailers’ records from customers who used loyalty cards that record product purchases and affidavits submitted by purchasers. And in rejecting them, the court provided no guidance regarding what, if any, processes could be sufficient to ascertain which consumers had valid claims or how they could be tested. In demanding such strict proof of an ironclad method to identify purchasers at the class certification stage, the Third Circuit arguably allowed the perfect to be the enemy of the good.

[Page 48]

In a subsequent decision denying class certification, the Third Circuit noted the fact that the defendant itself—there a large retailer—failed to keep records of the allegedly fraudulent sales at issue, and thus there was no conclusive way to determine precisely who was defrauded.153 This, of course, would act as an incentive for a company that is violating the law to not maintain business records of the transactions so it can then point to that failure as a grounds to challenge class certification should litigation arise. This would be an inappropriate incentive. The Third Circuit also ignored the ultimate consequence of its strict standard, which is that a defendant who is liable to a large and diffuse number of retail customers is effectively immunized from private class action damages litigation. As the Seventh Circuit has noted, "[t]he realistic alternative to a class action is not 17 million individual suits, but zero individual suits, as only a lunatic or a fanatic sues for $30."154

The courts that have rejected an "ascertainability" requirement have also overlooked critical considerations. In the Ninth Circuit’s Briseno decision, the court stated it was simply interpreting the plain text of Rule 23, which makes no mention of an ascertainability requirement.155 But the court ignored the impact of the Rule 23(b) (3) "predominance" requirement, which, as the Fifth Circuit has observed, requires the district court to seriously consider the administration of the trial of the case on a classwide basis, balancing the common issues against the individualized issues; a court may not adopt "a figure-it-out-as-we-go-along approach."156

The Briseno court properly observed that due process does not necessarily require that all absent class members receive actual notice, and it added that "[c]ourts have routinely held that notice by publication in a periodical, on a website, or even at an appropriate physical location is sufficient to satisfy due process."157 But clearly it is not the case that any notice in any publication or website, no matter how limited the circulation, would suffice for a large class of consumers. The court provided no guidance of whether the notice plan in the case before it would suffice for due process or the considerations for reviewing such plans. Notably, the Federal Judicial Center’s "Judges’ Class Action Notice and Claims Process Checklist and Plain Language Guide" specifies that reaching 70-95% of class members is a reasonable "lynchpin" for proper notice.158 But the Ninth Circuit provided no discussion of whether the notice in that case could reasonably be expected to reach that high a percentage of the class or the evidence a court should review to make that determination. This is of further importance because courts typically consider the absence of class member objections to support a proposed settlement when, in fact, such an absence could simply be the result of few class members actually receiving notice of the pending action.

[Page 49]

The Briseno court then minimized the problem of inadequate notice which then "might deny an absent class member the opportunity to opt out and pursue individual litigation."159 It reasoned that "in reality that risk is virtually nonexistent in . . . low-value consumer class actions. Such cases typically involve low-cost products and, as a result, recoveries too small to incentivize individual litigation."160 This is true, but the court ignored the fact that due process requires such notice. The court also ignored another key problem with inadequate notice, which is that class members who do not receive notice cannot submit a claim for their share of any award, yet they will be precluded from seeking recovery in a subsequent action. And, of course, the defendant also has a critical interest in ensuring that notice to the class was "the best practicable" because, if it was not—which will be decided by a later court and not the court hearing the class action—there is no bar to subsequent claims and even a subsequent class action seeking the same damages that were already paid after trial or settlement. In stating it was simply interpreting the plain text of Rule 23, the Ninth Circuit ignored these important due process issues.

The Briseno court then addressed the possibility of fraudulent claims—a concern that the Third Circuit observed must be considered—by stating that courts "can rely, as they have for decades, on claim administrators, various auditing processes, sampling for fraud detection, follow-up notices to explain the claims process, and other techniques tailored by the parties and the court to avoid or minimize fraudulent claims."161 What "auditing processes" and "other techniques"? While such processes and techniques may, in fact, exist, there were none presented in the court record, and the court appeared to just assume, with no evidence discussed, that they not only existed but were sufficient to address the concerns in the case before it. Thus, it is unclear whether a district court can presume such techniques exist with no further inquiry (and whether that presumption can be rebutted), or whether a plaintiff must present evidence of such techniques and their effectiveness.

Finally, Briseno did address the due process concern that a defendant "have an opportunity to dispute whether class members really bought the product or used the service at issue."162 While recognizing that such a due process right existed, the court again pointed to unspecified "auditing processes," "sampling," and other techniques used by claims administrators—who do not represent the defendant and have no duty to zealously advocate on its behalf.163 It then effectively nullified this due process right to challenge illegitimate claims by concluding that the total liability is a simple calculation of "the price premium attributable to the allegedly false statement that appeared on every unit" multiplied "by the total number of units sold."164 It concluded that "the identity of particular class members does not implicate the defendant’s due process interest at all because the addition or subtraction of individual class members affects neither the defendant’s liability nor the total amount of damages it owes to the class."165 But this is far too simplistic. The defendant has a due process right to ensure that whatever its liability, any damages be distributed in a fair and just manner so that absent class members are bound by the decision and do not bring a second action based on inadequate representation or lack of notice.

[Page 50]

The Briseno court summed up its weighing of the relevant considerations with the following observation: "Practically speaking, a separate administrative feasibility requirement would protect a purely theoretical interest of absent class members at the expense of any possible recovery for all class members—in precisely those cases that depend most on the class mechanism."166 Denying any meaningful remedy through an application of Rule 23 that is too strict—as perhaps is the case in the Third Circuit’s analysis—is a valid concern. But the Ninth Circuit arguably went too far in the other direction by denying a class action defendant any meaningful right to defend against the class claims simply by a plaintiff’s alleging widespread consumer claims against a broad and unidentifiable class.


In sum, none of the courts of appeal that have addressed the "ascertainability" issues that accompany the class certification decision—including "administrative feasibility" concerns—have properly considered all of the relevant due process and other considerations. The Second, Third, Fourth, Fifth and Eleventh Circuits have ignored certain of the relevant considerations while overweighting others, such as, arguably, refusing to ever permit class membership to be established through sworn affidavits because of the burden and expense for a defendant to challenge such proof. And the Sixth, Seventh, Eighth, and Ninth Circuits have disregarded or underweighted other factors, such as the means of providing notice to a broad and diffuse class that would satisfy due process, or a class action defendant’s legitimate rights to ensure that all (or nearly all) class members received such notice so they would be bound and to challenge invalid class member claims.

If the circuits cannot resolve these critical differences and derive guidelines that provide proper and thorough consideration of all relevant due process and other concerns, the Supreme Court must resolve the current circuit split with a full analysis of these difficult but important issues.

[Page 51]



1. Geoff Holtz is a Partner in the Antitrust & Competition group at Morgan, Lewis & Bockius LLP and is a former member and current advisor to the Executive Committee of the Antitrust, Unfair Competition, and Privacy Section of the State Bar of California. Nitin Jindal is an Associate in the Antitrust & Competition group at Morgan, Lewis & Bockius LLP. The views expressed in this article are those of the authors and do not necessarily represent the views of Morgan, Lewis & Bockius LLP.

2. Fed. R. Civ. P. 23(a).

3. Fed. R. Civ. P. 23(b)(3).

4. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011).

5. Randleman v. Fidelity Nat’l Title Ins. Co., 646 F.3d 347, 352 (6th Cir. 2011).

6. Id. at 669.

7. Messner v. Northshore Univ. Health System, 669 F.3d 802, 824 (7th Cir. 2012). See also Romberio v. UnumProvident Corp., 385 F. App’x 423 (6th Cir. 2009) (on a claim of improper denial of long-term disability benefits, overturning certification because the proposed class included "many individuals whose claims were properly denied for medical reasons") (emphasis in original omitted).

8. In re Rail Freight Fuel Surcharge Antitrust Litig., 725 F.3d 244 (D.C. Cir. 2013). In Comcast Corp. v. Behrend, 133 S.Ct. 1426 (2013), the Supreme Court reaffirmed that at the class certification stage, the plaintiff must present a model of damages that applies classwide and measures only the damages attributable to plaintiffs’ particular theory of liability.

9. In re Nexium Antitrust Litig., 777 F.3d 9 (1st Cir. 2015).

10. Briseno v. ConAgra Foods, Inc., 844 F.3d 1121 (9th Cir. 2017).

11. Although Briseno‘s analysis of "administrative feasibility" largely points to the Third Circuit’s holding in Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013), the requirement as applied by Carrera originated with that court’s opinions in Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 593-94 (3d Cir. 2012) and In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 312 (3d Cir. 2008).

12. 727 F.3d 300 (3d Cir. 2013).

13. Id. at 304.

14. Id.

15. Id.

16. Id.

17. Id. at 307.

18. Id.

19. Id.

20. Id.

21. Id. (citation omitted).

22. Id.

23. Id.

24. Id. at 308.

25. Id. at 309.

26. Id. at 310.

27. Id.

28. Id.

29. Id.

30. Id.

31. Id. at 311.

32. Id.

33. 784 F.3d 154 (3d Cir. 2015).

34. Id. at 159.

35. Id. at 163.

36. Id. at 169.

37. Id. at 170.

38. Id. at 169.

39. Id. at 171.

40. Id. at 170.

41. Id. at 171.

42. Id. at 170.

43. 621 F. App’x 945 (11th Cir. 2015).

44. Id. at 951.

45. Id.

46. Id. at 947-48.

47. Id. at 948.

48. Id.

49. Id. at 949.

50. Id. at 949, n.5.

51. Id. at 948-49 (quotations and citations omitted).

52. Id. at 949.

53. Id.

54. Id. at 950.

55. Id.

56. Id.

57. 806 F.3d 22 (2d Cir. 2015).

58. Id. at 23.

59. Id. at 23-24.

60. Id. at 24.

61. Id. (quoting 7A Charles Alan Wright et al., Federal Practice & Procedure § 1760 (3d ed. 1998)).

62. Id. at 24-25 (quoting Charron v. Pinnacle Grp. NY. LLC, 269 F.R.D. 221, 229 (S.D.N.Y. 2010)).

63. Id. at 25.

64. Id. at 26.

65. 764 F.3d 347 (4th Cir. 2014).

66. Id. at 358.

67. Id.

68. Id. (quoting Marcus, 687 F.3d at 593) and citing 7A Charles Alan Wright et al., Federal Practice & Procedure § 1760 (3d ed. 2005) ("[T]he requirement that there be a class will not be deemed satisfied unless . . . it is administratively feasible for the court to determine whether a particular individual is a member.")).

69. Id. at 359.

70. Id. at 360.

71. Id.

72. 501 F.3d 443 (5th Cir. 2007).

73. Id. at 444.

74. Id. at 445.

75. Id. at 445 n.3.

76. 795 F.3d 654 (7th Cir. 2015).

77. Id. at 658.

78. Id. at 661.

79. Id. at 661.

80. Id.

81. Id. at 658.

82. Id.

83. Id. (citations omitted).

84. Id. at 662.

85. Id. at 663 (citations omitted).

86. Id. at 665 (listing examples where actual notice was not required) (emphasis in original).

87. Id.

88. Id. at 667.

89. Id.

90. Id.

91. Id. at 668.

92. Id. at 670.

93. Id.

94. Id. at 671.

95. Id. at 662.

96. Id.

97. Id.

98. Id. at 669.

99. Id.

100. 799 F.3d 497 (6th Cir. 2015).

101. Id. at 524-25.

102. Id.

103. Id. at 524 (emphasis in original).

104. Id. at 525.

105. Id. at 525-26 (quoting Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 540 (6th Cir. 2012)).

106. Id. at 525 (quoting Young, 693 F.3d at 538 (emphasis added).

107. Id. (quoting Young, 693 F.3d at 539) (emphasis in original).

108. Id. at 526.

109. Id. at 526-27.

110. 821 F.3d 992 (8th Cir. 2016).

111. Id. at 997.

112. Id.

113. Id. at 996.

114. Id.

115. 844 F.3d 1121 (9th Cir. 2017).

116. Id. at 1125-26.

117. Id. at 1125.

118. Id. at 1126 (citation and quotations omitted).

119. Id. at 1127.

120. Id. at 1127-28.

121. Id. at 1128.

122. Id.

123. Id.

124. Id. at 1129.

125. Id. at 1129-30.

126. Id. at 1130 (quoting Christopher R. Leslie, The Significance of Silence: Collective Action Problems and Class Action Settlements, 59 FLA. L. REV. 71, 119 (2007)).

127. Id. at 1131.

128. Id.

129. Id. at 1132.

130. Id.

131. Martin v. Hunter’s Lessee, 14 U.S. 304, 347-48 (1816).

132. See, generally, Note, Forum Shopping Reconsidered, 103 HARV. L. REV. 1677, 1686 (1990).

133. See 15 U.S.C. § 22 ("Any suit, action, or proceeding under the antitrust laws against a corporation may be brought not only in the judicial district whereof it is an inhabitant, but also in any district wherein it may be found or transacts business").

134. In re Nexium Antitrust Litig., Ill F.3d 9 (2015). Note that the First Circuit assumed an "ascertainability" requirement under Rule 23 and approved of the use of affidavits to resolve concerns that arose, but the court did not address the issue in detail as the dispute focused on whether the presence of a number of uninjured class members could defeat class certification.

135. Id. at 14 n.7.

136. In re Rhone-Poulenc Rorer, Inc., 51 F.3d 1293, 1298 (7th Cir. 1995).

137. Shady Grove Orthopedic Assoc., P.A. v. Allstate Ins. Co., 559 U.S. 393, 436 (2010) (J. Ginsburg dissent).

138. In re Rhone-Poulenc Rorer, Inc., 51 F.3d at 1299.

139. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980) (internal citation and quotations omitted).

140. Martin v. Franklin Capital Corp., 546 U.S. 132, 139 (2005).

141. Procter & Gamble Co. v. Rikos, 136 S.Ct. 1493 (2016); Direct Digital, LLC v. Mullins, 136 S. Ct. 1161 (2016).

142. 472 U.S. 797 (1985).

143. 417 U.S. 156, 173 (1974).

144. Id. at 175.

145. Fed. R. Civ. P. 23(c)(2)(B).

146. Brown v. Ticor Title Ins. Co., 982 F.2d 386, 392 (9th Cir. 1992).

147. Frank v. United Airlines, Inc., 216 F.3d 845, 851 (9th Cir. 2000).

148. Silber v. Mabon, 18 F.3d 1449, 1451 (9th Cir. 1994) (notice to investors whose names were unknown was published in financial periodicals and mailed to securities brokers who held stock for investors in street name, and absent class member’s due process rights were not violated although the notice was not received until after the opt-out deadline).

149. Mullane v. Central Hanover Bank & Tr. Co., 339 U.S. 306, 315 (1950).

150. Mullins, 795 F.3d at 669.

151. This also may give rise to class counsel conflict issues, but that is beyond the scope of this article.

152. Carrera, 727 F.3d at 307.

153. Hayes v. Wal-Mart Stores, Inc., 725 F.3d 349 (3d Cir. 2013).

154. Carnegie v. Household Int’l, Inc., 376 F.3d 656, 661 (7th Cir. 2004) (emphasis omitted).

155. 844 F.3d at 1125.

156. Madison v. Chalmette Refining, LLC, 637 F.3d 551, 557 (5th Cir. 2011).

157. 844 F.3d at 1129.

158. Judges’ Class Action Notice and Claims Process Checklist and Plain Language Guide, Federal Judicial Center (2010).

159. 844 F.3d at 1129.

160. Id.

161. 844 F.3d at 1130 (citations and quotations omitted).

162. Id.

163. The court further observed that the defendant "does not explain why such procedures are insufficient to safeguard its due process rights." 844 F.3d at 1131. But it is the plaintiff who bears the burden at the class certification stage to establish that the class members’ claimed damages stemmed from the defendant’s actions that created the legal liability. Comcast Corp., 133 S. Ct. at 1435. It is not the defendant’s burden to prove that it cannot be done.

164. 844 F.3d at 1132.

165. Id. (citation and quotations omitted).

166. Id. at 1129.

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