Papasan v. Dometic Corp.
Public Justice is co-counsel in an 11th Circuit appeal of a decision denying certification of a consumer class action on “ascertainability” grounds. The proposed class action concerns hundreds of thousands of consumers who own small refrigerators used in recreational vehicles. According to the plaintiffs, the refrigerators start to corrode as soon as they are installed, causing boiler tubes to crack, ruining the fridge, and expelling flammable and carcinogenic gases at high pressure. They moved for class certification based on the theory of economic loss (due to the fridges’ inherent defection) at point of purchase. Despite the classic nature of this claim—class members seeking identical damages for an identical product based on an identical course of conduct—the Southern District Court of Florida denied class certification.
At issue is the ascertainability of class members, that is, the ability to identify people impacted by the purported wrongdoing. The traditional view of ascertainability simply requires a clear, objectively defined class. However, some courts have started to apply a heightened standard, following the 2013 Third Circuit decision in Carrera v. Bayer Corp. That decision set a requirement that individual class members be identifiable at the class certification stage. This can make it impossible to pursue small-value consumer class actions, as well as some employment cases where the defendants have not maintained adequate records.
The federal courts of appeal have split on the ascertainability issue, although the majority have rejected the Third Circuit’s approach in Carrera. The district court in Papasan chose, however, to follow the heightened standard (based on an unpublished, non-precedential 11th Circuit decision adopting Carrera), ruling that “where a plaintiff provides no more than unsupported asserti[ons] that class members can be identified using the defendant’s records, it does not satisfy the ascertainability requirement.” The district court also rejected the plaintiffs’ argument that class members can self-identify via affidavit, even though that is a time-honored method of identification in small-value consumer class actions.
Pubic Justice recently won a victory in a similar case before the California Supreme Court, Noel v. Thrifty Co., that addressed ascertainability under California state class action rules. In reversing the lower court’s denial of class certification, the state supreme court relied heavily on federal court authority on ascertainability under Rule 23, and it is our hope that similar reasoning will allow us and our clients to prevail in the 11th Circuit.
Public Justice’s involvement in this case is part of our longstanding efforts to preserve Access to Justice by promoting and protecting the class action device.
- Leslie Brueckner
Zimmerman Reed, LLP, The Moskowitz Law Firm, PLLC, The Engel Firm, Hagens Berman Sobol Shapiro, LLP, Law Offices of Terrence A. Beard, Buckner + Miles, Searcy Denney Scarola Barnhart & Shipley, Harke Law LLP, Miami Shores