We previously wrote about the split among the circuit courts of appeal over the ascertainability requirement for class certification and whether self-identifying consumer affidavits—e.g., an affidavit in which a consumer attests that he or she is a class member and suffered injury—can satisfy that requirement.

Recently, the First Circuit denied, over a strong dissent, a Rule 23(f) petition to appeal a district court’s order certifying a class on the grounds that the plaintiffs could demonstrate ascertainability through consumer affidavits. Carter v. The Dial Corporation, No. 17-8009, 2017 WL 3225164 (1st Cir. July 31, 2017). In Carter, the district court certified a class of consumers from eight states who purchased antibacterial soap from 2001 to the present. The defendants lacked any records to identify class members, and class members were unlikely to possess records demonstrating that they purchased the product. Nevertheless, the district court, relying on the First Circuit’s recent decision In re Nexium Antitrust Litig., 777 F.3d 9 (1st Cir. 2015), held that the plaintiffs satisfied ascertainability because class members could submit affidavits or declarations to establish that they purchased the product during the 16-year class period.

Judge Kayatta, who also dissented in Nexium, dissented from the denial of the Rule 23(f) petition. Kayatta stated that the Nexium majority held that plaintiffs could establish classwide injury through affidavits from each class member stating that he or she was not a brand loyalist, i.e., would not have purchased a cheaper generic version of the drug if available—an approach suggested by neither party. 2017 WL 3225164 at *1 (citing Nexium, 777 F.3d at 20). Kayatta observed there was no record in either Nexium or Carter to evaluate whether the defendant would have had a meaningful opportunity to refute the proposed affidavits. Kayatta noted that “[s]ooner or later, this court will have to wrestle with the issues raised by the district court’s approach” on a full record and briefing. 2017 WL 3225164, at *1.

The Third Circuit and the Eleventh Circuit limit the use of affidavits to identify class members

In his dissent in Nexium, Kayatta explained that he would have followed the Third Circuit’s reasoning in Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2015) and Marcus v. BMW of North America LLC, 687 F.3d 583 (3d Cir. 2012), in which the Third Circuit found the plaintiffs could not establish ascertainability based solely on affidavits. Certifying a class requires a method to identify class members that is both administratively feasible and protects the defendants’ Seventh Amendment and due process rights. Id. at 33. Kayatta, however, did not believe the plaintiffs had shown that affidavits provided the defendant with an adequate opportunity to rebut the plaintiffs’ case. Id.

Carrera addressed facts similar to those in Dial Corp.: the district court certified a class of Florida consumers who purchased a diet supplement, but the defendants lacked any means to identify class members, and individual consumers were unlikely to have any documentation. The Third Circuit reversed the district court’s certification order and held that using affidavits to identify class members “does not address a core concern of ascertainability: that a defendant must be able to challenge class membership.” Id. at 309. Without a meaningful opportunity to challenge the plaintiffs’ affidavits, the defendants would be deprived of their due process rights. The Eleventh Circuit took a similar view in Karhu v. Vital Pharmaceuticals, Inc., 612 Fed.Appx. 945, 2015 WL 3560722, at *2-4 (11th Cir. June 9, 2015).

The Seventh and Ninth Circuits allow a plaintiff to use affidavits to identify class members

Other circuit courts, however, have rejected Carrera as inconsistent with the text and goals of Rule 23. As we explained here, the Seventh Circuit rejected what it called the Third Circuit’s “heightened ascertainability requirement.” Mullins v. Direct Digital, LLC, 795 F.3d 654, 662 (2015). The Seventh Circuit agreed that class certification must be conducted in a manner to protect the defendant’s due process rights, but denied that allowing affidavits alone to establish class membership infringed on those due process rights. Id. at 669-72. Rather, the Seventh Circuit held that “[a]s long as the defendant is given the opportunity to challenge each class member’s claim to recovery during the damages phase, the defendant’s due process rights are protected.” Id. at 671. By contrast, a heightened ascertainability requirement would have the “effect of barring class actions where class treatment is often most needed: in cases involving relatively low-cost goods or services, where consumers are unlikely to have documentary proof of purchase.” Id. at 658. In such cases, “the class device is often essential to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action. …” Id. (internal quotation omitted).

Similarly, as described here, in Briseno v. ConAgra Foods, Inc., 844 F.3d 1121 (9th Cir. 2017), the Ninth Circuit held that establishing class membership by self-identifying affidavits did not impinge on the defendant’s due process rights: “Given that a consumer’s affidavit could force a liability determination at trial without offending the Due Process Clause, we see no reason to refuse class certification simply because that same consumer will present her affidavit in a claims administration process after a liability determination has already been made.” Id. at 1132. Like the Seventh Circuit, the Ninth Circuit found that “an administrative feasibility requirement like that imposed by the Third Circuit would likely bar [low-value consumer class actions] because consumers generally do not keep receipts or other records of low-cost purchases.” Id. at 1129.

The Sixth Circuit, in Rikos v. Procter & Gamble Co., 799 F.3d 487 (2015), also declined to adopt a heighted ascertainability requirement, but stopped short of holding that affidavits alone could be used to ascertain the class. In Rikos, the Sixth Circuit held that plaintiffs could establish ascertainability on the defendant’s records, which could be “supplemented through the use of receipts [and] affidavits.” Id. at 526.

Dial Corp. reflects competing concerns

The district court’s opinion in Dial Corp. reflects the competing concerns that have led to the different outcomes among the circuits. On one hand, allowing persons to identify themselves as class members and establish injury through affidavits significantly lowers the bar to class certification. And once a class is certified, the defendant becomes subject to significant exposure and enormous pressure to settle—which is why class certification decisions often determine the outcome of the litigation: “Faced with even a small chance of a devastating loss, defendants will be pressured into settling questionable claims.” AT&T LLC v. Concepcion, 533 U.S. 333, 350 (2011) (Scalia, J.). Accordingly, the use of affidavits at the class certification stage needs to be carefully scrutinized to ensure the defendant is not stripped of a meaningful opportunity to test or challenge the affidavits. Moreover, the process to test or challenge affidavits can be daunting, as eliciting testimony from thousands of class members and having a court adjudicate those contests is quite expensive and time-consuming. These practical and procedural issues arguably conspire to deprive the defendants of their Seventh Amendment and due process rights.

On the other hand, preventing the use of affidavits altogether could preclude class certification, without which class members may not wish to go through the effort and expense of bringing a claim to recover for purchasing a low-cost product.

As a practical matter, the First Circuit’s declining to address these competing concerns means that practitioners trying cases in the First Circuit must continue to apply Nexium in trying to determine the extent to which affidavits may be used to certify a class.