Eighth Circuit Declines to Adopt Separate Ascertainability Test for Class Action Certification | Practical Law

Eighth Circuit Declines to Adopt Separate Ascertainability Test for Class Action Certification | Practical Law

In Sandusky Wellness Center, LLC v. Medtox Scientific, Inc., the US Court of Appeals for the Eighth Circuit declined to adopt a separate, preliminary requirement for ascertainability for class action certification under Federal Rule of Civil Procedure (FRCP) 23. Instead, courts in the Eighth Circuit must conduct a rigorous analysis of all FRCP 23 requirements, including an assessment of whether the class is adequately defined and clearly ascertainable.

Eighth Circuit Declines to Adopt Separate Ascertainability Test for Class Action Certification

by Practical Law Litigation
Published on 06 May 2016 • USA (National/Federal)
In Sandusky Wellness Center, LLC v. Medtox Scientific, Inc., the US Court of Appeals for the Eighth Circuit declined to adopt a separate, preliminary requirement for ascertainability for class action certification under Federal Rule of Civil Procedure (FRCP) 23. Instead, courts in the Eighth Circuit must conduct a rigorous analysis of all FRCP 23 requirements, including an assessment of whether the class is adequately defined and clearly ascertainable.
On May 3, 2016, in Sandusky Wellness Center, LLC v. Medtox Scientific, Inc., the US Court of Appeals for the Eighth Circuit declined to adopt a separate, preliminary requirement for ascertainability for class action certification under FRCP 23. Instead, courts in the Eighth Circuit must conduct a rigorous analysis of all FRCP 23 requirements, including whether the class is adequately defined and clearly ascertainable ( (8th Cir. May 3, 2016)).
In August 2012, Sandusky Wellness Center filed a putative class action complaint against MedTox Scientific, alleging that MedTox sent Sandusky an unsolicited fax that violated the Telephone Consumer Protection Act (TCPA). In April 2014, Sandusky moved to certify as a class all persons who, on or after four years before the filing of the action, were sent telephone or fax messages by or on behalf of MedTox that did not display a proper opt out notice.
Under FRCP 23(a), a plaintiff seeking to file a lawsuit on behalf of a class must satisfy four prerequisites. The district court, however, did not address the prerequisite requirements for class certification under FRCP 23(a). Rather, it held that Sandusky did not objectively establish who was in the class and therefore the class was not ascertainable. The district court denied Sandusky's class certification motion and subsequently granted MedTox's motion for summary judgment. Sandusky appealed.
The Eighth Circuit reversed. The court noted that most circuit courts recognize a separate ascertainability requirement for class action certification but diverge on the meaning of ascertainability. The Eighth Circuit, however, has not addressed whether ascertainability is a separate, preliminary requirement for class action certification. Instead, Eighth Circuit courts considering class certification must conduct a rigorous analysis of the requirements of FRCP 23, including whether the proposed class is adequately defined and clearly ascertainable.
Based on its analysis, the Eighth Circuit reversed the district court's denial of class certification and remanded the case to the district court for further proceedings because it found that:
  • Sandusky's proposed class was ascertainable, as MedTox's fax logs were objective criteria making the recipient of each fax clearly ascertainable.
  • The proposed class met the commonality and predominance requirements of FRCP 23(a)(2) and (b)(3).