In Cherry v. Dometic Corporation, No. 19-13242 (11th Cir. February 2, 2021), the Court held that putative class representatives do not have to prove the existence of an administratively feasible method to identify absent class members as a precondition for certification of a class action under Federal Rule of Civil Procedure 23. Plaintiffs, owners of allegedly defective refrigerators manufactured by Dometic Corporation, as putative class representatives, moved to certify a class of similarly situated owners. The district court denied certification based on plaintiffs’ failure to prove administrative feasibility, and dismissed the action because, in its view, the denial of class certification divested it of subject matter jurisdiction.
The Eleventh Circuit vacated the district court’s order denying class certification and dismissing the action, holding that the doctrines of invited error and forfeiture do not bar the court’s consideration of the issue of administrative feasibility; administrative feasibility is relevant under Rule 23(b)(3) but is not a prerequisite of certification; and jurisdiction under the Class Action Fairness Act does not depend on class certification. Accordingly, the court remanded for further proceedings.
In support of their motion for class certification, the plaintiffs argued that the class was ascertainable and that class identification was administratively feasible because the class could “be readily identified through Dometic’s sales and warranty registration records, DMV records and if necessary, through affidavits.” In response, Dometic asserted that its records would not be helpful in identifying potential class members because the majority of refrigerators sold by Dometic are sold to RV dealers and manufacturers and not direct to consumers, which meant Dometic had no record of sales made by the dealers or manufacturers. The district court agreed with Dometic and denied class certification because the plaintiffs failed to prove administrative feasibility and dismissed the action without prejudice based on its determination that the denial of class certification deprived it of subject matter jurisdiction under the Class Action Fairness Act (“CAFA”).
Not only did the Eleventh Circuit walk back on a previous non-binding, unpublished decision, see Karhu v. Vital Pharms., Inc., 621 F. App’x 945 (11th Cir. 2015), but it further contributed to an already existing circuit split, joining the Second, Sixth, Seventh, Eighth, and Ninth Circuits in rejecting the requirement of administrative feasibility. See In re Petrobras Sec., 862 F.3d 250 (2d Cir. 2017); Rikos v. Procter & Gamble Co., 799 F.3d 497 (6th Cir. 2015); Mullins v. Direct Digit., LLC, 795 F.3d 654 (7th Cir. 2015); Sandusky Wellness Ctr., LLC v. Medtox Sci., Inc., 821 F.3d 992, (8th Cir. 2016); Briseno v. ConAgra Foods, Inc., 844 F.3d 1121 (9th Cir. 2017).