The Seventh Circuit Rejects Carrera Ascertainability, and Cites Judge Fisher With Approval

Regular readers of this blog have seen frequent criticism of the class action “ascertainability” doctrine espoused by Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013).  Recently, as discussed here, the Appellate Division in Daniels v. Hollister Co., 440 N.J. Super. 359 (App. Div. 2015), declined to import Carrera ascertainability into New Jersey state court class action jurisprudence in a well-reasoned opinion by Judge Fisher.

Last week, in Mulllins v. Direct Digital, LLC, 795 F.3d 654 (7th Cir. 2015), the Seventh Circuit confronted the question of whether to endorse Carrera.  The Seventh Circuit resoundingly rejected Carrera and its reasoning in a lengthy and scholarly opinion.  The panel confronted each of the “policy concerns” that the Third Circuit cited in support of its result and disposed of each one in highly persuasive fashion.

Unsurprisingly, the Seventh Circuit cited Judge Ambro’s opinion dissenting from the denial of en banc review in Carrera, as well as Judge Rendell’s compelling concurring opinion in Byrd v. Aaron’s, Inc., 784 F.3d 154 (3d Cir. 2015) (Rendell, J., concurring).  The panel also relied on some District Court cases from around the country that have declined to follow Carrera.

But the Seventh Circuit also cited and quoted with approval Judge Fisher’s opinion in Daniels.  The quoted material said that “[a]scertainability … is especially misguided when applied to a case where any difficulties encountered in identifying class members are a consequence of a defendant’s own acts or omissions. …  Allowing a defendant to escape responsibility for its alleged wrongdoing by dint of its particular recordkeeping policies … is not in harmony with the principles governing class actions.”  Well said!

It is rare that a Circuit Court of Appeals cites a state court opinion in a context other than one where substantive state law is to be applied.  Research reveals that there have been only two prior Seventh Circuit opinions that contain substantive discussion of New Jersey Appellate Division opinions, though about twenty others have included Appellate Division cases in string citations.

Judge Fisher can feel complimented that the Seventh Circuit found his opinion in Daniels to be persuasive.  One day, the Third Circuit may do the same and come around to the view of what is currently a significant minority of Third Circuit judges that Carrera must be rolled back.  Or, to hark back to my distant high school and college Latin classes, and to paraphrase the Roman senator Cato, “Carrera delenda est” (Carrera must be destroyed).

My thanks to my firm’s law clerk, Jose Ortiz, for the research regarding the frequency with which the Seventh Circuit has cited or discussed Appellate Division decisions.