USA – LOUISIANA Trends and Developments Contributed by: Allan Kanner, Conlee Whiteley and Cynthia St. Amant, Kanner & Whiteley, LLC
Kanner & Whiteley, LLC 701 Camp Street New Orleans LA 70130 USA Tel: +1 504 524 5777 Email: c.whiteley@kanner-law.com Web: www.kanner-law.com/
Certification of Consumer Class Actions in Louisiana and US Federal Courts Overview Certification of consumer class actions has become increasingly difficult as legislatures and courts con- tinue to restrict what was once a liberal application of the class action statutes, particularly in the con- text of cases involving consumer fraud. As a result, consumer class actions are less frequently certified, and those that withstand the heightened certification scrutiny are often narrowly defined. The trend of limiting class certification in US federal courts and in many states, including Louisiana, has been building for years. The most consequential change came with the passage of the Class Action Fairness Act (CAFA) in 2005, which significantly expanded federal jurisdiction over class actions, in an attempt to apply more uniform rules to class actions nationally, leaving only small, localised classes in state courts. Other federal changes include the 2003 and 2018 amendments to Rule 23, increasing judicial over- sight and specifying the criteria for evaluating class action settlements. This article highlights some of the challenges faced by consumer class action practitioners in Louisiana and in the USA, where the ability to certify consumer class actions has increasingly narrowed. Ascertainability’s role in class certification What is “ascertainability”? Ascertainability in the class action context refers to the ability to identify the members of the class using objective criteria. If the class is not objectively defined, potential class members will be unable to determine
whether or not they are members of the class in order to protect their legal rights, and courts will not be able to determine who is bound by any judgment rendered in a case. Louisiana has an explicit ascertainability requirement for class certification, requiring the class to be defined objectively in terms of ascertainable criteria (La. C.C.P. Article 591 (A)). Unlike Louisiana, the federal class action rule, Rule 23, does not have an explicit ascertainability requirement. Instead, ascertainability is generally treated as an implicit requirement of Rule 23, requiring a proposed class to be sufficiently defined and class members appropriately ascertainable. Most federal appellate circuit courts consider the determination of whether the proposed class is sufficiently defined and class members are appropriately ascertainable as being encompassed within the explicit class certification requirements, such as the predominance, superiority or manageability considerations of Rule 23 (b). How- ever, a minority of federal circuit courts treat ascertain- ability as a threshold requirement for class certifica- tion, and not only do these courts require the plaintiff to show an objectively defined class, but they also require the plaintiff to show a reliable, administratively feasible method for identifying class members – ie, one that does not require individualised fact-finding. This heightened ascertainability requirement adds to the difficulty of obtaining class certification of con- sumer class actions. What is an objectively defined class? There is no bright line governing ascertainability. Whether a class is objectively defined will vary from
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