February 5, 2021
by: Colin E. Flora
Last week, we discussed the numerosity requirement embodied in Federal Rule of Civil Procedure 23(a)(1) as the initial requirement for class certification. Numerosity, like commonality, typicality, and adequacy, is a requirement explicit in Rule 23(a). No matter what the type of class action, the four requirements of Rule 23(a) must be satisfied. As we previously addressed, once they are satisfied, then the proponent of certification must also establish one of the three requirements of Rule 23(b). A question has arisen among courts applying Federal Rule 23 and its state-court mirrors, of “whether administrative feasibility is a requirement for class certification.” As the Eleventh Circuit, quoting the work of a Pittsburgh Law Professor, observed: “Administrative feasibility is ‘[o]ne of the most hotly contested issues in class action practice today.’” Today’s discussion focuses on the Eleventh Circuit’s opinion in Cherry v. Domestic Corp., which concluded that administrative feasibility is not a prerequisite to class certification, but is a factor to be considered under Rule 23(b)(3).
While your first reaction may well be that the answer to the question is simple because Rule 23 never makes mention of “administrative feasibility,” it is important to recognize that it would not be the first “implied” requirement of Rule 23. Many, not all, courts have read into Rule 23 an implied requirement that there be a sufficiently definite class definition such that the membership of the class can be ascertained—“ascertainability.” The Third Circuit has layered onto ascertainability that an administrative feasibility requirement—i.e. “that the identification of class members will be ‘a manageable process that does not require much, if any, individual factual inquiry.’”
Prior to Cherry, the Eleventh Circuit had “addressed the issue only in unpublished decisions that applied the heightened standard of the Third Circuit,” which are not binding on the court.
Looking at the issue with fresh eyes, the Eleventh Circuit found that its own precedent on ascertainability did not support an administrative-feasibility requirement:
Turning to the text of Rule 23, the Eleventh Circuit still found no support for such a requirement under either Rule 23(a) or (b):
Nor does a requirement of administrative feasibility follow from Rule 23(b). To be sure, administrative feasibility has relevance for Rule 23(b)(3) classes, in the light of the manageability criterion of Rule 23(b)(3)(D). Rule 23(b)(3)(D) instructs the district court, in deciding whether “a class action [would be] superior to other available methods for fairly and efficiently adjudicating the controversy,” to consider “the likely difficulties in managing a class action.” A difficulty in identifying class members is a difficulty in managing a class action. But because Rule 23(b)(3) requires a balancing test, it does not permit district courts to make administrative feasibility a requirement. The manageability inquiry focuses on whether a class action “will create relatively more management problems than any of the alternatives,” not whether it will create manageability problems in an absolute sense. And the district court must balance its manageability finding against other considerations. So administrative difficulties—whether in class-member identification or otherwise—do not alone doom a motion for certification. Indeed, we have made clear that manageability problems will “rarely, if ever, be in [themselves] sufficient to prevent certification.”
Finding no support in its precedent or Rule 23, the Eleventh Circuit held “that administrative feasibility is not a requirement for certification under Rule 23.” Instead, arguments of administrative feasibility only apply in the context of damages classes under Rule 23(b)(3), and, even then, only as a function of balancing manageability concerns.
One final notable observation was made by the court before remanding the case. The district court, upon denying class certification, determined that it no longer possessed jurisdiction over the case under the Class Action Fairness Act (CAFA). As we have previously addressed, the issue can be somewhat complicated and depends on the federal circuit. In the Eleventh Circuit, “Federal jurisdiction under the Class Action Fairness Act does not depend on certification, so a district court retains jurisdiction even after it denies certification. Whether as a class or otherwise, the parties may proceed in federal court.”
Join us again next time for further discussion of developments in the law.
- Cherry v. Domestic Corp., —F.3d—, No. 19-13242 (11th Cir. 2021) (Pryor, C.J.).
- Colin E. Flora, How Does a Class Action Case Work?, Hoosier Litig. Blog (July 6, 2012).
- Colin E. Flora, Seventh Circuit Takes Rare Deep Dive into Numerosity, Hoosier Litig. Blog (Jan. 29, 2021).
- Rhonda Wasserman, Ascertainability: Prose, Policy, and Process, 50 Conn. L. Rev. 695, 697-99 (2018).
- Colin E. Flora, Citing Unpublished Cases in Indiana, Hoosier Litig. Blog (May 14, 2016).
- Colin E. Flora, When Does CAFA Jurisdiction Cease After Class Certification is Denied?, Hoosier Litig. Blog (July 19, 2019).
*Disclaimer: The author is licensed to practice in the state of Indiana. The information contained above is provided for informational purposes only and should not be construed as legal advice on any subject matter. Laws vary by state and region. Furthermore, the law is constantly changing. Thus, the information above may no longer be accurate at this time. No reader of this content, client or otherwise, should act or refrain from acting on the basis of any content included herein without seeking appropriate legal or other professional advice on the particular facts and circumstances at issue.