In Timothy Cherry et al. v. Dometic Corp., No. 19-13242, (11th Cir. Feb. 2, 2021), the court examined the question as to whether the existence of administratively feasible method to identify absent class members is an absolute precondition to class certification. Administrative feasibility is the concept that in order to effectively manage a class action, the court needs some way to identify the members of the class. The parties often disagree over whether such a method exists and the “administrative feasibility” of plaintiff’s suggested approach to this pragmatic issue. While “administrative feasibility” is not expressly provided for within Rule 23 as the prerequisites to class certification, many courts require a class representative to prove that his or her proposed method of identifying the members of the class is administratively feasible. Currently, the First, Third and Fourth Circuit Courts of Appeals all require proof of administrative feasibility. The Second, Sixth, Seventh, Eighth and Ninth Circuit Courts of Appeals do not require proof of administrative feasibility. Until the Cherry case was issued, the Eleventh Circuit had not yet weighed in on the issue.
In Cherry, the court was faced with a class action alleging that Dometic Corp. knew about and concealed defects in gas-absorption refrigerators they manufactured and sold between 1997 and 2016. The plaintiffs alleged that the defects caused a dangerous chemical solution to leak from the refrigerator’s boiler tubes resulting in “thousands of fires or leaks and that it gradually ruins the functionality of the refrigerators.” The plaintiffs were pursuing warranty claims under the federal Magnuson-Moss Warranty Act and various state laws. At the certification stage of the case, the parties disputed whether the proposed class was identifiable. Dometic’s lawyers argued that the plaintiffs had failed to offer any proof that there existed an administratively feasible means by which to identify the members of the class. The district court agreed with Dometic and refused to certify the class.
On appeal, the Cherry court held that “administrative feasibility . . . is not a requirement for certification, either as an element of ascertainability or otherwise” but is “one factor among several under Rule 23(b)(3)” that a district court “may consider” in deciding whether to certify a class. The court explained that one of the necessary preconditions is that the class be “clearly ascertainable” so that the court can then determine whether there are questions of law or fact common to the class, whether the class is so numerous that joinder of all members is impracticable and whether the claims and defense of the representative parties is typical of the claims and defenses of the class. A class is considered clearly ascertainable if its membership is capable of being determined. However, the Cherry court made clear that “membership can be capable of determination without being capable of convenient determination.” What remains unclear is whether a class actually will be certified in the Dometic refrigerator defect matter. The Cherry court remanded the case back to the district court for further proceedings on this issue.