Challenges to ascertainability have become noticeably more popular over the last few years. As a result, defendants will sometimes challenge the class definition even though there are deeper problems with the class. As a recent case shows, however, it is usually worth probing deeper than the definition in one’s arguments.
Steimel v. Minott, No. 1:13-cv-957-JMS-MJD, 2014 U.S. Dist. LEXIS 38228 (S.D. Ind. Mar. 24, 2014) offers some object lessons in what ascertainability problems can really mean. In Steimel, the plaintiffs sued the Secretary of the Indiana Family and Social Services Administration after a change in policy (transferring developmentally disabled individuals from one Medicaid waiver program for which they technically did not qualify to one for which they did) resulted in a reduction in services. The plaintiffs sought to certify a class of
“Any and all persons, current and future, terminated from the A&D Waiver as a result of the 2011 Policy Change who require more services each year than are available through the FS Waiver and who are not enrolled in the CIH Waiver.”
The class definition contained some obvious flaws: among others, it was hopelessly vague. Who “require[s] more services?” How does one identify the people “not enrolled” in a program? And the court duly found the class to be hopelessly indefinite.
But it went further. Drawing on the flaws in the class definition it also found the following difficulties with certifying a class:
No numerosity. The court pointed out that
If class membership is unascertainable, there is no basis for the Court to conclude that the putative class is so large that joinder of all members is impracticable.
It’s a simple point, but an effective one. If you can’t identify the class members, you usually can’t determine how many of them there are.
No commonality. The court also pointed out that–contrary to the requirements of Wal-Mart Stores, Inc. v. Dukes, there was no “glue” holding the class together. As a result, it could not simply re-define the class to solve the vagueness problem.
the problems with Plaintiffs’ proposed class run deeper than the class definition; they are rooted in the misguided nature of Plaintiffs’ contention that the 2011 Policy Change is the “glue” that renders the case certifiable.
In other words, it was the lack of a common question with a common answer that caused the problem with the class definition, not the other way round.
No workable injunctions. The court also found that injunctive relief (and therefore, certification under Rule 23(b)(2) would not be appropriate.
For the same reasons the putative class is not ascertainable–particularly the difficulty in determining whether one “requires” more services than available on the FS Waiver–an injunction requiring the FSSA to ensure that those terminated from the A&D Waiver receive the services they require would “merely initiate a process through which highly individualized determinations of liability and remedy are made.”
Courts do not always find 23(b)(2) and a vague class incompatible; after all, sometimes an injunction can help an indefinite group of people. But that is when there is a common issue too address. In a situation like this, to properly make class members whole, one would have to issue narrowly tailored, individualized injunctions.
The takeaway here is an important one: ascertainability may be one of the most obvious problems with a class, but it is often just a symptom of deeper issues. A truly effective class opposition will explore why just amending the class definition will not solve plaintiffs’ problems.