Seventh Circuit Review


Stephen Pigozzi


The class action is often the only way for victims of consumer fraud to pursue a remedy. Several federal circuit courts have recently adopted the heightened ascertainability requirement—a requirement that makes certifying a consumer class almost impossible. A plaintiff can only meet the heightened ascertainability requirement by showing that members of her proposed class can be identified in a reliable and administratively feasible way. This typically requires documentary proof of class membership. For classes made up of purchasers of deceptive low-cost products who have not kept their receipts, heightened ascertainability has served as an insurmountable barrier to certification.

In Mullins v. Direct Digital LLC, the Seventh Circuit rejected the adoption of the heighted ascertainability requirement. The court held that nothing in Rule 23 mentioned or implied the requirement, and that Rule 23 and the court’s settled class certification analysis already adequately addressed the policy concerns motivating its adoption. In so holding, the court recognized the negative implications that heightened ascertainability would have on the consumer class action.

The Seventh Circuit got it right in rejecting heightened ascertainability. This rule should be abandoned because it undercuts the core policy behind the class action: the vindication of the rights of a group of people who individually would be without effective strength to bring a corporate defendant to court at all. The Judicial Conference’s Committee on Rules of Practice and Procedure should amend Rule 23 to codify the Seventh Circuit’s approach to class certification outlined in Mullins. Such an amendment would eliminate judicially created hurdles to class certification and preserve the class action as an instrument for consumer protection and deterrent against corporate wrongdoing.

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