Imagine filing a complaint, and two weeks later, receiving a brief in which the defendant argues that if you were to prosecute your claim, the defendant would have to review its own documents; therefore, your claim should be dismissed. Class action plaintiffs routinely encounter a variation of that frivolous argument, under the guise of “ascertainability.”
Courts generally require a class to be defined based on how the defendant acted toward an ascertainable group of persons. Gemberski v. PartsSource, Inc. So, class action defendants frequently argue that a need to review documents to determine class membership defeats “ascertainability.” That is not the law.
The Test
The test for ascertainability is whether class membership can be determined through objective criteria. See Rikos v. Procter & Gamble Co.
Sometimes, class definitions fall short. For example, in Bungard v. Department of Job & Family Services, 10th Dist. No. 05AP- 43, the plaintiffs defined the class as including persons “who did not receive services in compliance with all state and federal … requirements.” Id. at 11. The 10th District rejected that class definition because “determining membership in this case requires an analysis of the merits of the legal claims of potential members.” (Emphasis added.) Id. at 15. In other words, the Bungard class was not ascertainable because identifying class members required individual determinations on the merits – in essence, hundreds of mini-trials would be required.
But when a class is defined using objective criteria, not implicating the merits, class certification should not be denied due to the necessity of a ministerial document review: The “size of a potential class and the need to review individual files to identify its members are not reasons to deny class certification.” Young v. Nationwide Mutual Ins. Co. In Young, the Sixth Circuit quoted with approval a district court’s holding that the need to manually review files was not sufficient to defeat class certification: “‘If it were, defendants against whom claims of wrongful conduct have been made could escape class-wide review due solely to the size of their businesses or the manner in which their business records were maintained.’” Id. at 540. The Third Circuit has explained that “no Rule 23(b)(3) class could ever be certified” if “no level of inquiry as to the identity of class members can ever be undertaken.” Byrd v. Aaron’s Inc. Finding that a class was ascertainable despite a need to review individual loan files, a California district court observed that if the “class were not certified and instead myriad lawsuits were brought by individual plaintiffs, such a review would still be required.” Peel v. BrooksAmerica Mortgage Corp., 2012 WL 3808591, *3 (C.D. Cal. Aug. 30, 2012).
Courts across the country routinely reject challenges to ascertainability premised on an argument that a ministerial document review would be unduly burdensome. For example, in Moreno v. Napolitano (the defendants complained that ascertaining class membership would require a manual review of tens of thousands of documents. Id. at *6. The district court held that “the fact that [d]efendants may need to conduct a manual review to determine the composition of the class is not sufficient grounds for denying class certification.” Id. at *7. Also, in Dunnigan v. Metropolitan Life Insurance Co., the district court held that membership in a class with an estimated 6,700 members could be ascertained through an examination of individual files. Id. at 136. The “fact that [a] manual process may be slow and burdensome cannot defeat the ascertainability requirement.” Id. Similarly, in Cummings v. Starbucks Corp., the plaintiff alleged that Starbucks failed to provide required rest breaks. Id. at *1. The plaintiff proposed to identify class members through copies of schedules, time records, and payroll summaries. Id. at *15. Starbucks complained that a laborious document review would be necessary. Id. at *16. Rejecting Starbucks’ argument, the district court observed that there is no requirement that a class be ascertainable through “‘reasonable effort.’” Id. Finally, in Ohio, the Eighth District has held that “the mere fact that evidence as to each transaction would have to be gathered did not preclude the finding of a common question of law or fact, nor did it preclude class certification.” Washington v. Spitzer Management, Inc.
So, in proposing a class definition, class counsel should ensure that class membership can be determined through objective criteria, without reference to the merits of individual claims. The need to apply those objective criteria in the context of a ministerial document review should not preclude class certification. Nicole T. Fiorelli
