Tonight, President Donald Trump is expected to nominate one of three federal appellate judges to the Supreme Court: Judge William Pryor of the Eleventh Circuit, Judge Neil Gorsuch of the Tenth Circuit or Judge Thomas Hardiman of the Third Circuit. While their class action experience varies, all three judges have recently sided with class action defendants on frequently litigated issues: Pryor on predominance, Gorsuch on CAFA removal and Hardiman on ascertainability.

Judge Pryor on predominance in Brown v. Electrolux (11th Cir. 2016)

Writing for a unanimous Eleventh Circuit, Judge Pryor recently vacated a district court order certifying two statewide classes of consumers who complained of “smelly washing machines” allegedly caused by a “rubber seal on the front door [that] retains water, which allows mildew to grow.” Brown v. Electrolux Home Prods., 817 F.3d 1225, 1230 (11th Cir. 2016). Judge Pryor identified at least two reasons why the district court abused its discretion in finding Rule 23(b)(3)’s predominance requirement satisfied.

First, the district court certified the plaintiffs’ consumer claims even though “their elements of causation,” including reliance, “require individual proof.” Id. at 1237. Some class members, Judge Pryor observed, might have “already know[n] about the mildew problem, which was well-publicized at the time, when they purchased their … washing machines.” Id. at 1232. This could defeat causation for some putative class members but not others, which could in turn defeat predominance.

Second, the district court “did not first resolve several questions of state law,” including whether applicable state law requires “pre-suit notice, an opportunity to cure, and manifestation of the defect.” Id. at 1237. All these questions, Judge Pryor concluded, “bear on predominance” because they “could require individual proof” from each putative class member. Id. at 1238.

Remanding to the district court, the Eleventh Circuit “express[ed] no view” about how these predominance questions should be answered. Id. at 1241. Earlier in his opinion, though, Judge Pryor echoed recent Supreme Court precedent in warning that “[t]he party seeking class certification has a burden of proof” under Rule 23, not just a “burden of pleading.” Id. at 1234 (quotation omitted).

Judge Gorsuch on CAFA removal in Hammond v. Stamps.com (10th Cir. 2016)

Also in 2016, Judge Gorsuch wrote for a unanimous Tenth Circuit in reversing a district court order that “refused jurisdiction” under the Class Action Fairness Act, which “promises a federal forum for proposed class actions if (among other things) the amount ‘in controversy’ exceeds $5 million.” Hammond v. Stamps.com, Inc., 844 F.3d 909, 2016 U.S. App. LEXIS 22600, at *1, 3 (10th Cir. Dec. 20, 2016).

The Hammond plaintiff complained in state court that she and a putative class of subscribers were misled by Stamps.com, which “lets customers print their own postage from home,” about the site’s monthly subscription charges. Id. at *1-2. She allegedly believed that she would be charged “only for those months when she actually used its service, not every single month.” Id. at *2. She demanded $300 in statutory damages, about $32 in subscription charges and unspecified punitive damages. Id. at *2-3.

Stamps.com removed the case to federal court under CAFA, presenting “uncontested declarations showing that … at least 312,680 customers called to cancel their subscriptions” within the likely statute of limitations period. Id. at *3. So “if each of these persons were to win the same $300 in damages” that plaintiff demanded, then “the value of this case would exceed $93 million.” Id. Even without statutory damages, “the case’s potential value would still lie at almost $10 million” – nearly double “the $5 million threshold Congress ordained.” Id. Yet the district court remanded to state court because there was no proof that all of the 312,680 potential class members “were actually deceived.” Id. at *4.

Judge Gorsuch corrected the district court’s “legal error about the meaning of … ‘in controversy’” under CAFA. Id. “[F]ederal jurisdiction under CAFA,” he explained, “doesn’t depend on how much the plaintiff is likely to recover but on the amount the plaintiff’s allegations suggest she might lawfully recover.” Id. at *11 (emphasis added). Following the Seventh, Eighth and Ninth Circuits, the Tenth Circuit held that “once the proponent of federal jurisdiction has explained plausibly how the stakes exceed $5 million … the case belongs in federal court unless it is legally impossible for the plaintiff to recover that much.” Id. (quotations and citations omitted).

Judge Hardiman on ascertainability in Carrera v. Bayer Corp. (3d Cir. 2014)

Judge Hardiman has yet to individually weigh in on the Third Circuit’s ascertainability requirement for class certification, but he sided with a 9-4 majority in denying rehearing en banc of the court’s widely cited Carrera decision.

In Carrera, the Third Circuit vacated an order certifying a class of Florida consumers who bought a Bayer diet supplement. Carrera v. Bayer Corp., 727 F.3d 300, 303 (3d Cir. 2013). “[T]he ascertainability question,” then, was “whether each class member purchased [the supplement] in Florida.” Id. at 307. And that question could not be answered by reference to retailer records or consumer affidavits. Id. at 308. The Third Circuit found “no evidence that retailers even ha[d] records for the relevant period,” and reaffirmed its distaste for identifying class members by their own “say so.” Id. at 306, 309.

The plaintiff petitioned for rehearing en banc, and the Third Circuit denied the petition by a 9-4 vote. Judge Hardiman joined but did not write for the majority, which reiterated that the plaintiff “ha[d] not satisfied his burden to show that there is a reliable, administratively feasible method to determine class membership.” Carrera v. Bayer Corp., No. 12-2621, 2014 U.S. App. LEXIS 15553, at *3 (3d Cir. May 2, 2014). On remand, though, the plaintiff would have “the opportunity to submit a screening model specific to this case that can reliably distinguish between accurate affidavits and fraudulent or inaccurate ones.” Id. Only then might consumer “say so” suffice to identify class members.

Ascertainability is a hot topic and the subject of a Circuit split regarding its existence (or nonexistence). (See prior post.) If Judge Hardiman is indeed elevated to the Supreme Court, the future of ascertainability may be brighter.