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Cherry v. Dometic Corp.

Cherry 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 The district court in Papasan chose, however, to follow the heightened standard (based on an unpublished, non-precedential 11th Circuit decision adopting Carrera), ruling that “where a plaintiff provides no more than unsupported asserti[ons] that class members can be identified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.

On February 2, 2021, the legal team won their challenge to the Eleventh Circuit’s ascertainability standard, where the Court provided a significant clarification on its requirements for certifying class actions, ruling that proof of “administrative feasibility” is not required under Rule 23, and member identification doesn’t need to be convenient, which was the cause for the district court to refuse class certification on ascertability grounds in this case, holding that plaintiffs failed to show that each and every class member could be identified by some type of official record.

In a 15-page ruling authored by Chief Judge Richard Pryor, the Court ruled that “[p]roof of administrative feasibility cannot be a precondition for certification,” which represents a significant change in the Eleventh Circuit’s ascertainability standard and a step in the right direction for class actions moving forward. And because the ascertainability issue is still unresolved in a few circuits, this decision could have an impact in other jurisdictions as well.

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

Case Documents