A putative class action plaintiff’s affidavit claiming that they qualify to be a class member may not be sufficient in many cases going forward. This “self-selection” of class members is coming under fire from more federal courts. A growing trend suggests that courts have started taking a harder look at how class membership is defined under Rule of Civil Procedure 23, and demanding that named plaintiffs show that the proposed class is ascertainable when there is no reasonably objective means of determining class membership – i.e. no receipts or business records establishing proof of purchase in consumer product class action.
Ascertainability requires an administratively feasible means of identifying class membership using objective criteria.
In the past, courts have glossed over the ascertainability requirement, allowing individuals to identify themselves as class members solely based on affidavits. See e.g., McCrary v. Elations Co., LLC, EDCV 13-00242 JGB OP, 2014 WL 1779243 (C.D. Cal. Jan. 13, 2014) (“In this Circuit, it is enough that the class definition describes “a set of common characteristics sufficient to allow” a prospective plaintiff to “identify himself or herself as having a right to recover based on the description.”); Boundas v. Abercrombie & Fitch Stores, Inc., 280 F.R.D. 408, 417 (N.D. Ill. 2012); Ries v. Arizona Beverages USA LLC, 287 F.R.D. 523, 535 (N.D.Cal.2012) (class ascertainable where only way to determine class membership was with self-identification through affidavits); Brown v. SCI Funeral Servs. Of Fla., Inc., 212 F.R.D. 602, 606 (S.D. Fla. 2003) (“The mere fact that class members will have to file a claim form or affidavit stating whether and when they were provided with the pertinent disclosures does not preclude the application of class treatment.”); see also 3 Conte & Newberg, Newberg on Class Actions § 10:12, at 508 (4th ed. 2002) (“Methods of claim verification may also vary with the ease of documenting claims by individual members, and also with the size of the claims involved. A simple statement or affidavit may be sufficient where claims are small or are not readily amenable to verification.”).
Courts are, however, becoming more reluctant to accept self-identifying affidavits as a means of ascertaining class membership. Recently, the Northern District of California addressed the divergence amongst California district courts regarding this issue, holding that a class is unascertainable where self-identifying affidavits are the only means of determining class membership. See, Jones v. ConAgra Foods, Inc., No. C 12-01633 CRB, 2014 WL 2702726, *9 (N.D. Cal. June 13, 2014) (class unascertainable where class members could only be determined by self-identification); Sethavanish v. ZonePerfect Nutrition Co., No. 12–2907, 2014 WL 580696 (N.D. Cal. Feb. 13, 2014) (declining to rely on self-identifying affidavits to determine class membership because such “procedure could invite fraudulent or inaccurate claims and undermine the finality of any judgment with respect to absent class members.”); see also In re POM Wonderful LLC, No. 10–2199, 2014 WL 1225184, at *6 (C.D. Cal. Mar. 25, 2014).
The Third Circuit also has joined the emerging trend of courts rejecting self-identifying affidavits as a means of identifying class members. Carrera v. Bayer Corp., 727 F.3d 300, 309 (3rd Cir. 2013) (declining to rely on self-identifying affidavits because defendant would not have an opportunity to challenge class membership); see also Stewart v. Beam Global Spirits & Wine, Inc., CIV. 11-5149 NLH/KMW, 2014 WL 2920806 (D.N.J. June 27, 2014).
This is certainly a trend worth watching.