(Reuters) - In a supplemental brief filed Friday at the U.S. Supreme Court, plaintiffs in a false labeling case against Conagra argue that a decision this week by the 3rd U.S. Circuit Court proves there’s no need for the justices to insert themselves into a class action issue percolating in federal appellate courts.
The 3rd Circuit, according to the brief, had been the notable exception to a fast-developing appellate consensus on the so-called ascertainability test courts should apply when considering plaintiffs’ proposed methods of identifying members of the class. But the Conagra plaintiffs contend that in the 3rd Circuit’s ruling this week in City Select Auto v. BMW Bank of North America, the court is backpedaling as fast as it can from its own precedent.
City Select, the new brief argues, is “a clear and significant repudiation” of the 3rd Circuit’s rigorous ascertainability standard, which lies at the heart of Conagra’s request for Supreme Court review of the 9th Circuit’s contrary holding in its case. “At bottom, City Select Auto provides further evidence that all circuits are converging,” the new brief said. “In the meantime, there is no need for this court to intervene.”
As you probably know – and as I’ve been reporting exhaustively! – the Conagra petition awaits the justices when they return from their summer break in September. Conagra, represented by Jones Day, contends the court must resolve a split between the 3rd Circuit - whose precedent insists that plaintiffs cannot be certified as a class without providing an objective and administratively feasible way to ascertain class membership - and several other appellate courts, including the 9th Circuit in its case.
Conagra submitted its reply brief on July 5. In the ordinary course, that would have been the last word before the Supreme Court’s first conference of the term on Sept. 25. But it’s been a summer of appellate foment on ascertainability. In the week after Conagra’s reply brief, both the 2nd and 6th Circuits issued decisions refining their precedent on the issue. The 2nd Circuit, which Conagra had described as a 3rd Circuit ally, sided in In re Petrobras with the 7th and 9th Circuits in explicitly rejecting the 3rd Circuit ascertainability test. The 6th Circuit, though, seemed in Sandusky Wellness Center v. ASD Specialty Healthcare to inch closer to the 3rd Circuit’s standard.
Both Conagra and the class action plaintiffs who oppose review submitted supplemental briefs to the Supreme Court in July to address the new appellate rulings. Conagra emphasized the need for Supreme Court guidance amidst uncertainty in the lower courts. The plaintiffs highlighted an emerging consensus that the 3rd Circuit’s test is too stringent.
On Wednesday, the 3rd Circuit unquestionably added to the drama in its City Select decision, which revived a Telephone Consumer Protection Act class action in which the plaintiffs would have to rely partly on sworn affidavits to identify class members. The 3rd Circuit has previously held that sworn affidavits in consumer class actions are not a sufficiently reliable and administratively feasible means of ascertaining class members.
But in City Select, the appeals court said that because plaintiffs proposed first narrowing the universe of potential class members by using a database of fax recipients, sworn affidavits were a reasonable way to refine class membership. The opinion was written by Judge Anthony Scirica, who previously wrote one of the 3rd Circuit’s seminal ascertainability decisions, Bayer v. Carrera. Judge Julio Fuentes, who previously called on his 3rd Circuit colleagues to reconsider the Carrera decision en banc, wrote a concurrence in City Select reiterating that call.
I had described the City Select decision as a small step back from 3rd Circuit ascertainability, since Judge Scirica emphasized the factual difference between City Select and the 3rd Circuit’s previous ascertainability cases. The judge did not acknowledge that the court was rethinking ascertainability. In fact, he said the three principles that led the 3rd Circuit to impose its heightened test continue to demand rigorous scrutiny from trial courts weighing class certification.
But the Conagra plaintiffs, represented by Samuel Issacharoff of New York University, read the 3rd Circuit’s City Select opinion as a repudiation of the court’s precedent. “The 3rd Circuit did not simply ‘walk back its position; rather, it sprinted as far back as it could (as a panel) in narrowing ascertainability,” the new brief said. “Realistically, the panel did all that it could to reject its early articulation of the ascertainability test without directly overruling prior precedent (which only the en banc court can do).”
It’s significant, according to the new brief, that the majority opinion did not specifically reject Judge Fuentes’ “invitation to join all other circuits that have considered seriously the ascertainability issue.”
As of Friday at noon, Conagra hadn’t disclosed whether it will also file a brief addressing the 3rd Circuit ruling.
I want to close with an explanation of why I’ve so closely covered every twist and turn of the ascertainability issue at the Supreme Court. I’m hardly the first person to point this out, but there are two fundamentally different ways to think about class actions: as a mere procedural mechanism to promote efficiency by aggregating identical claims; or as vehicle for accountability, in which little guys band together to gain leverage against big guys. Sometimes those visions overlap. Often they don’t – and ascertainability is a key point of divergence. The Supreme Court’s decision whether to grant Conagra’s petition for review will reveal a lot about how this newly composed court sees class actions.
Reporting by Alison Frankel