USA – LOUISIANA Trends and Developments Contributed by: Allan Kanner, Conlee Whiteley and Cynthia St. Amant, Kanner & Whiteley, LLC
court to court. However, there are certain character- istics of class definitions that courts generally agree do not constitute an objectively defined class, which includes class definitions that: • are vague and ambiguous – Indiana Medicaid recipients who have a disability, were recommend- ed for certain services or treatments by a treating provider, were inaccurately evaluated during the coverage or prior approval process with Medicaid, and have or will be harmed as a result; • are based on subjective criteria, such as state of mind – all individuals who consumed Diet Coke from the fountain, deceived by the marketing practices employed by Coca–Cola Company into believing that fountain Diet Coke does not contain saccharin; and • depend on a merits determination (referred to as “fail-safe” classes) – all persons who were present in the defendant’s building between 1 September 1998 and 30 November 1998 and subjected to unlawful electronic audio surveillance. How do you objectively identify class members? Even a proposed class that does not suffer from any of the above infirmities may still fail to satisfy the ascer- tainability requirement if there is no objective means of identifying class members. In Louisiana, the ascertain- ability requirement has been met where information necessary to identify class members is available from the defendant’s own data or some other type of data or documentation. The same is true in federal courts. However, objectively identifying class members can be an obstacle to certification of consumer classes for economic loss associated with the purchase of low- cost products or services, because in those instances few consumers retain receipts or other documentary proofs of purchase. Further, consumer protection stat- utes in many states apply only to goods or services purchased by “consumers” or “for personal use”, which is not typical information found in receipts or a seller’s data. However, with some consumer products, including prescription medications, purchase data is required to be kept by the seller. In other instances, loyalty programmes, often used in chain pharma- cies and grocery stores, track and keep sales data associated with the member, and purchase of these
products may be more susceptible to proof of class membership. For good cause shown, the store col- lecting the data can be required to produce this data even when they are not a party in the case. Otherwise, self-identification by affidavit or similar documentation is the only way to establish class mem- bership. Some courts do not find self-identification to be an insurmountable barrier to class certification, but where self-identification is not permitted, the determi- nation of whether each class member purchased the product for personal use is often cited as an individual issue precluding class certification, whether couched in terms of ascertainability or one of the explicit Rule 23 requirements, such as predominance. Compare Mullins v Direct Digital, LLC , 795 F.3d 654, 669 (7th Circuit 2015) (stating district courts should have dis- cretion to allow class members to self-identify and to establish mechanisms to test such affidavits if need- ed, analogising to the use of self-serving affidavits to support a motion for summary judgment) with City Select Auto Sales Inc. v BMW Bank of N. Am. Inc. , 867 F.3d 434, 441 (3d Circuit 2017) (finding that affi- davits standing alone without records to identify class members or a method to weed out unreliable affidavits would not constitute a reliable and administratively feasible means of determining class membership). In an environment where fewer consumer class actions are certified, the ability to craft a clear, concise and appropriate class definition is more important than ever, along with advanced determination of whether the added component of administrative feasibility can be met. Advanced analysis of each should be given in preparing to file a class action. The use of standing to limit or deny consumer class actions The US Constitution’s Article III standing requirement is a powerful constraint on consumer class actions in federal courts, often leading courts to narrow or dismiss suits where plaintiffs cannot show concrete harm. The class representative is required to have an injury-in-fact – and, as the Supreme Court has noted, the class action device “adds nothing” to the question of standing. If the named plaintiff has no real stake in the controversy, the class cannot proceed.
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