Earlier this week, the Eleventh Circuit joined the Second, Sixth, Eighth, and Ninth Circuits in rejecting administrative feasibility as a prerequisite to certification under Rule 23, deepening a split with the First, Third, and Fourth Circuits. In Cherry v. Dometic Corporation, the court reversed the district court’s denial of class certification based on administrative feasibility. __ F.3d __, 2021 WL 346121, at *3-5 (11th Cir. Feb. 2, 2021). The Eleventh Circuit also held that denial of class certification did not divest the district court of jurisdiction, ordering the case to proceed in the district court. See id. at *6.
The result is a mixed bag for litigants. Plaintiffs likely will be encouraged that the Eleventh Circuit (for now) does not require proof of administrative feasibility, but defendants can take solace in that the Eleventh Circuit did caution that administrative feasibility remains relevant and its ruling does nothing to Rule 23’s ascertainability requirements. However, the question remains open and ripe for resolution at the Supreme Court. Further, defendants wary of a return to state court can be confident that they can continue to defend their cases in federal court, even if they beat certification.
In Cherry, plaintiffs brought a putative class action on behalf of purchasers of allegedly defective refrigerators. Id. at 1. The proposed class consisted of persons who purchased certain models of the refrigerators built since 1997. Id. Plaintiffs contended that they satisfied Rule 23’s implicit ascertainability requirement by defining the class with objective criteria and that Rule 23 does not require administrative feasibility. Id. Defendant argued, and the district court agreed, that plaintiffs failed to provide any evidence demonstrating a feasible method without overwhelming individual inquiry to identify the ascertainable putative class members, requiring denial. Id. After denial, the district court dismissed for lack of subject matter jurisdiction.
In reversing the district court, the Eleventh Circuit clarified that Rule 23’s ascertainability requirement focused on the class definition itself, not its administration. See id. at 3-4. Thus, to meet the ascertainability requirement, a plaintiff must demonstrate that the “membership is ‘capable of being’ determined.” Id. at *4 (citations omitted). Further, the question of administrative feasibility addressed post-certification issues because a plaintiff “proves administrative feasibility by explaining how the district court can locate the remainder of the class after certification.” Id. This analysis was better suited in analyzing manageability. See id. And because manageability involves a balancing test, administrative feasibility could be considered, but could not be required. Id. at *4-5.
For now, plaintiffs in the Eleventh Circuit will face fewer hurdles to class certification based on administrative feasibility. For starters, Cherry makes clear that administrative feasibility cannot carry the day. And to the extent that administrative feasibility is considered, it might be drowned out by other considerations in a balancing test under manageability. For defendants, not all is lost, as it still can be considered during certification. And the widening circuit split, with almost every circuit taking a stance on the issue, calls out for Supreme Court resolution. But the bottom-line for now is that the Eleventh Circuit just became a more attractive option for plaintiffs’ lawyers seeking to file class actions.
Less the focus of the opinion but also of importance, the Eleventh Circuit also held, without much explanation at all, that even if class certification were properly denied, that jurisdiction under the Class Action Fairness Act did not depend on certification. Id. at *6. Thus, a district court retains jurisdiction even after it denies certification. Id. Curiously, in a prior unpublished decision, the Eleventh Circuit took the opposite position. See Walewski v. Zenimax Media, Inc., 502 F. App’x 857, 862 (11th Cir. 2012) (“We affirm the dismissal on the grounds that absent certification as a class action, the district court lacks subject matter jurisdiction over Walewski’s individual claim.”). And the Southern District of Florida relied on that decision in dismissing the case after denial of class certification less than six months ago. See Ohio State Troopers Ass’n Inc. v. Point Blank Enterprises, Inc., __ F. Supp. 3d __, 2020 WL 5667766, at *17 (S.D. Fla. Aug. 24, 2020), appeal docketed No. 20-13588 (11th Cir.).
For now, defendants can view this holding as a potentially positive development in that they will not necessarily be kicked to state court if they defeat class certification (though to be sure, some defendants would prefer a dismissal—and possible re-filing in state court—after a denial of class certification rather than continuing in federal court). And it appears that the Eleventh Circuit will have the opportunity to reinforce its scant holding when it disposes of the Ohio State Troopers appeal in the coming months.
One other result of the Cherry decision: the Eleventh Circuit has now issued multiple important decisions modifying past circuit decisions in just the last few months (the other being Johnson v. NPAS Solutions, 975 F.3d 1244 (11th Cir. 2020), which we previously discussed here). Cherry further solidifies the fact that the Eleventh Circuit is a circuit in flux with regard to class actions and one to watch for further class action developments going forward.