The Eleventh Circuit has joined the Second, Sixth, Seventh, Eighth, and Ninth Circuits in rejecting administrative feasibility as a prerequisite for class certification. The decision reverses unpublished Eleventh Circuit authority and deepens a circuit split with the First, Third, and Fourth Circuits on the issue.
In Cherry v. Dometic Corporation, 18 owners of gas-absorption refrigerators manufactured and sold by Dometic Corporation sued the company over alleged product defects. The plaintiffs sought to represent a class consisting of “all persons who purchased in selected states certain models of Dometic refrigerators that were built since 1997.” At the class-certification stage, the parties each addressed whether the proposed class satisfied Rule 23’s ascertainability requirement. Plaintiffs argued, among other things, that the proposed class was ascertainable because the class definition relied on objective criteria. Dometic asserted that ascertainability requires proof of administrative feasibility, which the plaintiffs failed to satisfy. The district court denied certification. Relying on unpublished Eleventh Circuit decisions, the district court concluded that administrative feasibility is an element of Rule 23’s ascertainability requirement, and the plaintiff had not satisfied it.
Plaintiffs appealed, arguing that administrative feasibility is not required to satisfy ascertainability or otherwise certify a class. The Eleventh Circuit agreed. As explained by Chief Judge Pryor, ascertainability – i.e., the requirement that class membership is capable of determination – is an implied prerequisite of Rule 23.” Yet “[a]dministrative feasibility is not an inherent aspect of ascertainability,” as class “membership can be capable of determination without being capable of convenient determination.” Nor is administrative feasibility required for class certification under circuit precedent or Rule 23’s text. Accordingly, “[p]roof of administrative feasibility cannot be a precondition for certification.”
While administrative feasibility is no longer a prerequisite for certification in the Eleventh Circuit, it remains relevant to Rule 23(b) classes. A district court may consider administrative feasibility as part of Rule 23(b)(3)(D)’s manageability criterion. “But because Rule 23(b)(3) requires a balancing test, it does not permit district courts to make administrative feasibility a requirement.” Chief Judge Pryor further cautioned that “[a]dministrative feasibility alone will rarely, if ever, be dispositive, but its significance will depend on the facts of each case.”
It remains to be seen whether the Cherry decision will prompt more class actions in the Eleventh Circuit, especially in light of the appellate court’s recent rejection of incentive awards for named plaintiffs. For those lawsuits that are filed, plaintiffs may be trading a hurdle to certification for practical difficulties with identifying and notifying members of an unwieldy class.