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Eleventh Circuit rules that “ascertainability” of proposed class in class action lawsuit is not dependent on administrative feasibility of identifying class members

On February 2, 2021, in Cherry, et al, v. Dometic Corporation, No. 19-13242, the Eleventh Circuit Court of Appeals reversed a U.S. district court’s dismissal of a class action lawsuit filed by the putative class representatives of a class of owners of allegedly defective refrigerators manufactured by the defendant. The plaintiffs had moved for class certification under Fed. R. Civ. P. 23(b)(3), proposing a class consisting of all persons who purchased in selected states certain models of Dometic refrigerators that were built since 1997 The district court dismissed the lawsuit because it denied certification based on the plaintiffs’ failure to prove “administrative feasibility” in determining class members and considered the denial of class certification to divest it of subject matter jurisdiction. The Eleventh Circuit ruled that the district was in error as to both issues, finding that jurisdiction is not divested by the denial of class certification and that Fed. R. Civ. P. Rule 23 provides no basis to require administrative feasibility. The Eleventh Circuit noted that there is a federal Circuit split on this latter issue, the First, Third and Fourth Circuits requiring proof of administrative feasibility as a perquisite to certification and the Second, Sixth, Seventh and Eighth rejecting this approach. In siding with the latter Circuits, the Eleventh Circuit stated that it was “limiting ascertainability to its traditional scope: a proposed class is ascertainable if it is adequately defined such that its membership is capable of determination.” The Court added that If a district court reaches Rule 23(b), and the action involves a proposed Rule 23(b)(3) class, it may consider administrative feasibility as part of the “manageability” criterion of Rule 23(b)(3)(D).