Is Your Putative Consumer Class Ascertainable? The 7th Circuit Suggests It Doesn't Really Matter At The Certification Stage

Class action plaintiffs have a new reason to file suit in the Seventh Circuit. In Mullins v. Direct Digital, LLC, 795 F.3d 654 (7th Cir. 2015), the Seventh Circuit refused to follow the Third Circuit's imposition of a heightened "ascertainability" requirement at the class certification stage. The Seventh Circuit affirmed the district court's certification of the consumer class and held that the plaintiffs did not have to prove at the class certification stage that there was a "reliable and administratively feasible" way to identify class members.The Seventh Circuit's ruling contributes to a growing divide among the circuits over how to ascertain a class under Rule 23's implicit requirement that a class must be defined clearly and that class membership must be defined by objective criteria.

Unlike the explicit class requirements listed in Rules 23(a) and 23(b) of the Federal Rules of Civil Procedure, ascertainability is an implicit prerequisite that courts have extrapolated from Rule 23(a)'s elements and/or Rule 23(c)(1)(B)'s instruction to define the class. See William B. Rubenstein, Newberg on Class Actions § 3:2 (5th ed. 2015). The reasoning is that a court can only apply Rule 23 requirements to a class whose members can be ascertained—put differently, a court needs to know who is a member of the class before it can rule on the Rule 23 requirements or before it can issue an order defining the class. Id.

This raises the question of what test courts should apply to define the class so that it is sufficiently ascertainable. Newberg on Class Actions § 3:3 (5th ed. 2015). While courts have described the test in various ways, it comes down to whether the class can be defined by objective criteria, such as geography, time, and injury suffered. Id. Subjective criteria, such as a class member's state of mind, fails for lack of definiteness. Id. Once the class is sufficiently defined by objective criteria, the next step determines whether the potential class members can be identified by those objective criteria in an administratively feasible way. In other words, ascertainability speaks to whether there is "a manageable process that does not require much, if any, individual factual inquiry." Id. It was with this second prong that the Seventh Circuit took issue in Mullins v. Direct Digital, specifically, when the second prong should be applied.

In Mullins, the putative class plaintiff sued a dietary supplement maker for allegedly selling a placebo...