A frequently-debated question in the class action realm is the role in certification analysis of “administrative feasibility.” Must a plaintiff show, before a class is certified, that a manageable way to contact absent class members exists?
In the Third Circuit, for example, the proposed class representative must establish feasibility separately, proving identifying class members will be “a manageable process that does not require much, if any, individual factual inquiry.” Carrera v. Bayer Corp.,
727 F.3d 300, 307–08 (3d Cir. 2013)
Looking to 11th Circuit precedent and the text of Rule 23, the 11th Circuit has ruled: it does not. The only prerequisites to a class are those defined in Fed. R .Civ. P. 23(a) and (b), including the implied requirement that a class be “ascertainable,” that is, the class’s membership is “capable of determination.”
Where administrative feasibility comes into play is in looking under Rule 23(b)(3)(D) at whether certain kinds of class actions (ones linked by predominately common issues of fact or law) present “likely difficulties in managing a class action.” Problems or inefficiencies in locating absent class members could be among those difficulties, but that kind of administrative feasibility is only a factor, not a requirement:
A difficulty in identifying class members is a difficulty in managing a class action. See Briseno, 844 F.3d at 1126. 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. Klay v. Humana, Inc., 382 F.3d 1241, 1273 (11th Cir. 2004), abrogated in part on other grounds by Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639 (2008). … So administrative difficulties—whether in class-member identification or otherwise—do not alone doom a motion for certification.
This opinion aligns the Eleventh Circuit with the Second, Sixth, Seventh, Eighth, and Ninth Circuits, but places it at odds with the Third, First, and Fourth. Given the prominent place of the class action in a range of U.S. litigation, from consumer to commercial, the question seems a likely one for nearer-term Supreme Court resolution.[The case is Cherry v. Dometric Corp., No. 19-13242 (11th Cir., decided Feb. 2, 2021).]