No. 17-1000

IN THE

UNITED STATES COURT OF APPEALS FOR THE AMES CIRCUIT

WILLA D. LOWE, individually and on behalf of a class of similarly situated persons,

Plaintiff-Appellant,

v.

AMES MEAT, INC.,

Defendant-Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF AMES DOCKET NO. 16-CV-3500-JD

BRIEF FOR THE PLAINTIFF-APPELLANT

The John Hart Ely Memorial Team DAVID BEYLIK JASON ETHRIDGE JENYA GODINA ISAAC PARK MARCH 22, 2017, 6:15 P.M. DAVID PHILLIPS AMES COURTROOM DEREK REINBOLD HARVARD LAW SCHOOL Counsel for Plaintiff-Appellant Oral Argument

i

QUESTIONS PRESENTED

1. Does Federal Rule of Civil Procedure 23 permit a federal court

sitting in diversity to entertain a class action under the Ames

Deceptive Trade Practices Act, notwithstanding Ames Revised

Statutes § 1001.9(b)?

2. Does a class representative need to demonstrate an objectively

verifiable means of identifying absent class members at the

class certification stage, beyond providing a clear class definition

and proposing the use of affidavits signed under penalty of

perjury?

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED...................................................................i

TABLE OF CONTENTS ....................................................................... ii

TABLE OF AUTHORITIES .................................................................iv

PRELIMINARY STATEMENT............................................................. 1

OPINIONS BELOW................................................................................ 2

JURISDICTION...................................................................................... 2

STATUTORY PROVISIONS AND FEDERAL RULES.................... 2

STATEMENT OF THE CASE............................................................... 3

SUMMARY OF ARGUMENT................................................................ 6

ARGUMENT ..........................................................................................12

I. Federal Rule of Civil Procedure 23 permits a federal court sitting in diversity to entertain a class action under the Ames Deceptive Trade Practices Act, notwithstanding § 1001.9(b). ..................................................12

A. Rule 23 is valid under the Constitution.................................. 13

B. Rule 23 is valid under the Rules Enabling Act. ..................... 14

1. Rule 23 is valid under the Rules Enabling Act because it “really regulates procedure.”.............................................. 14

2. Alternatively, Rule 23 is valid under the Rules Enabling Act because ADTPA § 1001.9 does not “define the scope” of a state right......................................................................... 22

3. In any event, Rule 23 is valid under the Rules Enabling Act by the bare holding of Shady Grove. ........................... 30

II. The district court abused its discretion by imposing a heightened ascertainability requirement. .........................31

A. The district court’s heightened ascertainability standard is inconsistent with the text of Rule 23. ..................................... 33

1. Rule 23’s text contains no express ascertainability requirement......................................................................... 33

2. An aggressive formulation of ascertainability contradicts certain provisions of Rule 23 and renders others superfluous.......................................................................... 34

iii

B. Willa Lowe’s class satisfies the traditional view of ascertainability......................................................................... 36

1. Administrative feasibility should follow the traditional view of ascertainability, which focuses on whether a class is defined using objective criteria. ..................................... 36

2. Lowe’s proposed class satisfies the conventional view of ascertainability because it is defined using objective criteria. ................................................................................ 39

C. A narrow reading of ascertainability best serves the policy preferences embedded in Rule 23............................................ 41

1. A narrow reading of ascertainability best serves Rule 23’s purposes. ............................................................................. 42

2. The concerns animating the district court’s heightened ascertainability requirement are unfounded. ................... 45

3. The district court’s “objective verifiability” test within the ascertainability requirement creates a nearly insurmountable obstacle for dispersed plaintiffs.............. 50

CONCLUSION ......................................................................................55

APPENDIX ........................................................................................... A1

iv

TABLE OF AUTHORITIES

Cases

Abbas v. Foreign Policy Grp., LLC., 783 F.3d 1328 (D.C. Cir. 2015) ............................................... 12, 16, 19

Allapattah Servs., Inc. v. Exxon Corp., 333 F.3d 1248 (11th Cir. 2003) ........................................................... 47

Am. Pipe & Const. Co. v. Utah, 414 U.S. 538 (1974) ....................................................................... 42, 43

Amchem Prods v. Windsor, 521 U.S. 591 (1997) ..................................................................... passim

Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 133 S. Ct. 1184 (2013) ............................................................. 30, 33, 51

Bearden v. Honeywell Int’l Inc., 2010 WL 3239285 (M.D. Tenn. Aug. 16, 2010) .................................. 28

Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (1988) ............................................................................. 33

Bello v. Beam Glob. Spirits & Wine, Inc., 2015 WL 3613723 (D.N.J. June 9, 2015)............................................ 51

Brecher v. Republic of Argentina, 806 F.3d 22 (2d Cir. 2015)....................................................... 40, 41, 43

Briseno v. ConAgra Foods, Inc., 844 F.3d 1121 (9th Cir. 2017) ..................................................... passim

Butler v. Sears, Roebuck & Co., 727 F.3d 796 (7th Cir. 2013) ............................................................... 46

Carnegie v. Household Int’l, Inc., 376 F.3d 656 (7th Cir. 2004) ............................................................... 44

Carpenters Pension Tr. Fund v. Barclays PLC, 310 F.R.D. 69 (S.D.N.Y. 2015) ............................................................ 52

Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013)......................................................... passim

v

Delta Airlines, Inc. v. August, 450 U.S. 346 (1981) ............................................................................. 33

Dunnigan v. Metro. Life Ins. Co., 214 F.R.D. 125 (S.D.N.Y. 2003) .......................................................... 51

Ebert v. Gen. Mills, Inc., 2015 WL 867994 (D. Minn. Feb. 27, 2015)......................................... 38

Garman v. Campbell Cty., Sch. Dist. No. 1, 630 F.3d 977 (10th Cir. 2010) ............................................................. 17

Gregg v. Georgia, 428 U.S. 153 (1976) ......................................................................... 7, 15

Hanna v. Plumer, 380 U.S. 460 (1965) ..................................................................... passim

In re Dial Complete Mktg. & Sales Practices Litig., 312 F.R.D. 36 (D.N.H. 2015) ............................................................... 49

In re Fosamax Prods. Liab. Litig., 248 F.R.D. 389 (S.D.N.Y. 2008) .......................................................... 44

In re Hydroxycut Mktg. & Sales Practices Litig., 299 F.R.D. 648 (S.D. Cal. 2014) .................................................... 17, 30

In re Lithium Ion Batteries Antitrust Litig., 2014 WL 4955377 (N.D. Cal. Oct. 2, 2014) ........................................ 17

In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 209 F.R.D. 323 (S.D.N.Y. 2002) .......................................................... 37

In re Nexium Antitrust Litig., 777 F.3d 9 (1st Cir. 2015).................................................................... 49

In re Optical Disk Drive Antitrust Litig., 2012 WL 1366718 (N.D. Cal. Apr. 19, 2012)...................................... 30

In re Urethane Antitrust Litig., 237 F.R.D. 440 (D. Kan. 2006) ...................................................... 52, 53

In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124 (2d Cir. 2001)................................................................. 48

Jones v. United Parcel Serv., Inc., 674 F.3d 1187 (10th Cir. 2012) ........................................................... 17

vi

King v. Palmer, 950 F.2d 771 (D.C. Cir. 1991) ....................................................... 16, 17

Koon v. United States, 518 U.S. 81 (1996) ............................................................................... 32

Lisk v. Lumber One Wood Preserving, LLC, 792 F.3d 1331 (11th Cir. 2015) ................................................... passim

Los Gatos Mercantile, Inc. v. E.I. DuPont De Nemours & Co., 2015 WL 4755335 (N.D. Cal. Aug. 11, 2015) ..................................... 17

Lumbermen’s Mut. Cas. Co. v. Wright, 322 F.2d 759 (5th Cir. 1963) ............................................................... 22

Mackey v. Lanier Collection Agency & Serv., Inc., 486 U.S. 825 (1988) ............................................................................. 35

Marks v. United States, 430 U.S. 188 (1977) ......................................................................... 7, 15

Matamoros v. Starbucks Corp., 699 F.3d 129 (1st Cir. 2012)................................................................ 37

McBean v. City of New York, 260 F.R.D. 120 (S.D.N.Y. 2009) .......................................................... 38

Miss. Pub. Corp. v. Murphree, 326 U.S. 438 (1946) ............................................................................. 21

MKB Constructors v. Am. Zurich Ins. Co., 2014 WL 2526901 (W.D. Wash. May 27, 2014).................................. 17

Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306 (1950) ............................................................................. 34

Mullins v. Direct Dig., 795 F.3d 654 (7th Cir. 2015) ....................................................... passim

Patterson v. McLean Credit Union, 491 U.S. 164 (1989) ............................................................................. 20

Rikos v. Procter & Gamble Co., 799 F.3d 497 (6th Cir. 2015) ............................................. 37, 38, 39, 40

Rodriguez v. Fly, — F.2d — (Ames Cir. 1985) .......................................................... 13, 32

vii

Ross v. Blake, 136 S. Ct. 1850 (2016) ......................................................................... 33

Saltzman v. Pella Corp., 257 F.R.D. 471 (N.D. Ill. 2009) ........................................................... 37

Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393 (2010) ..................................................................... passim

Sibbach v. Wilson & Co., 312 U.S. 1 (1941) ................................................................. 6, 13, 14, 20

Simer v. Rios, 661 F.2d 655 (7th Cir. 1981) ............................................................... 43

Stewart v. Cheek & Zeehandelar, LLP, 252 F.R.D. 387 (S.D. Ohio 2008)......................................................... 37

United States v. Johnson, 690 F.3d 60 (3d Cir. 1982)................................................................... 49

Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) ............................................................................. 46

Whitlock v. FSL Mgmt., LLC, 843 F.3d 1085 (6th Cir. 2016) ............................................................. 17

Woodward v. Booztron Elecs., — F.3d — (Ames Cir. 2014) ................................................................ 32

Young v. Nationwide Mut. Ins. Co., 693 F.3d 532 (6th Cir. 2012) ................................................................ 37

Statutes

18 U.S.C. § 1621 (2012)........................................................................... 49

26 U.S.C. § 6065 (2012)........................................................................... 49

28 U.S.C. § 1292 (2012)............................................................................. 2

28 U.S.C. § 1332 (2012)......................................................................... 2, 4

28 U.S.C. § 2072 (2012)................................................................. 3, 14, 22

52 U.S.C. § 20508 (2012)......................................................................... 49

Ames Rev. Stat. § 1001.4 ........................................................................ 26

Ames Rev. Stat. § 1001.8 ........................................................................ 27

viii

Ames Rev. Stat. § 1001.9 ................................................................ passim

Class Action Fairness Act, Pub. L. No. 109-2, 119 Stat. 4 (2005) .......... 4

N.Y. C.P.L.R. § 901 (McKinney 2006).................................................... 24

Other Authorities

Geoffrey C. Shaw, Note, Class Ascertainability, 124 Yale L.J. 2354 (2015).............................................................. 33, 35

John Hart Ely, The Irrepressible Myth of Erie, 87 Harv. L. Rev. 693 (1974) ................................................................ 18

Michael D. Torpey et al., Securities Litigation: Planning and Strategies — Defending Securities Claims (ALI-ABA Course of Study, May 1–2, 2008), WL SN084 ALI-ABA 691 ......................................................... 53

William B. Rubenstein, Why Enable Litigation?: A Positive Externalities Theory of the Small Claims Class Action, 74 UMKC L. Rev. 709 (2006) .............................................................. 44

Rules

Fed. R. Civ. P. 23............................................................................. passim

Fed. R. Civ. P. 53..................................................................................... 49

Fed. R. Civ. P. 59..................................................................................... 49

Treatises

Alan Wright & Arthur Miller et al., Federal Practice & Procedure (3d ed. 1998) ....................................... 32

William B. Rubenstein, Newberg on Class Actions (5th ed. 2016) ........................... 3, 20, 44, 53

1

PRELIMINARY STATEMENT

Ames Meat has declared war on Rule 23. One of its customers,

Willa Lowe, says Ames Meat lied to her and other loyal customers

about what’s really in the food it sells. Understandably, the Ames

legislature has made such deception illegal. Now, Ames Meat wants to

avoid responsibility in federal court by either erasing or rewriting

federal procedure. But the power to create and define federal rules

rests solely with Congress, not Ames Meat.

2

OPINIONS BELOW

The unreported opinion and order of the U.S. District Court for

the District of Ames regarding the Plaintiff-Appellant’s motion for

class certification is reproduced at page 2 of the Joint Appendix.

JURISDICTION

The district court had jurisdiction over Lowe’s claim under 28

U.S.C. § 1332(d) (2012). The district court denied Lowe’s motion for

class certification on January 8, 2017. Lowe filed a timely appeal

under Federal Rule of Civil Procedure 23(f), which this Court granted

on January 20, 2017. This Court has jurisdiction under 28 U.S.C.

§ 1292(e) and Rule 23(f).

STATUTORY PROVISIONS AND FEDERAL RULES

All relevant provisions and rules are reproduced in the

Appendix.

3

STATEMENT OF THE CASE

A Tale of Two Sovereigns

Over the years, Congress and the state of Ames have made their

own judgments about class certification in their respective court

systems. In 1934, Congress passed the Rules Enabling Act (REA),

allowing the Supreme Court to promulgate procedural rules for federal

courts. 28 U.S.C. § 2072(a) (2012). Rule 23, amended in 1966, created

a class action mechanism designed to promote efficiency by combining

“common issues into a single lawsuit.” 1 William B. Rubenstein,

Newberg on Class Actions § 1:15 (5th ed. 2016).

In 1993, the Ames legislature passed the Ames Deceptive Trade

Practices Act (the ADTPA) — “a strong and effective consumer

protection law [that would] protect both the consuming public and

honest businesses.” J.A. 12. The ADTPA was to be “broadly

construed” to achieve those goals. Id. Along with individual actions,

the Act created a mechanism in the Attorney General for investigating

and bringing claims of unlawful trade practices. J.A. 13, 15–16. A

procedural provision — § 1001.9(b) — prohibited individual consumers

from bringing ADTPA claims as class actions in state court; Ames

citizens instead had to go through the Attorney General for

representative claims. J.A. 16.

4

Congress then expanded the availability of class actions in

federal courts in 2005 with the Class Action Fairness Act (CAFA).

Pub. L. No. 109-2, 119 Stat. 4 (2005) (codified in scattered sections of

28 U.S.C.). CAFA granted federal courts jurisdiction over class actions

with minimum diversity and an aggregated amount-in-controversy. 28

U.S.C. § 1332(d) (2012).

An “All” Meat Treat

Ames Meat lied to Willa Lowe. When she left Jack’s Snacks

Grocery Emporium in October 2013, Lowe thought she had purchased

an “All Meat Treat.” J.A. 28. It was only through a local newspaper’s

investigative journalism that she discovered the truth — that her “all”

meat snack contained not just meat, but a blend of chemical binding

agents. J.A. 2–3. Growing up in Ames, Lowe had heard this lie more

than once. In fact, she knew it by heart. She bought Ames Meat’s

product knowing the familiar rhyme: “Meaties, it’s an all meat treat.”

J.A. 28. Now a resident of the neighboring state to the north, Lowe

returns often to Ames, purchasing her favorite snack every time. J.A.

3, 28. She, like many Ames residents, does not keep receipts for her

snacks. See J.A. 8, 29.

Procedural History

When Lowe discovered the lie, she sued Ames Meat under the

ADTPA in federal court. J.A. 3. She brought that claim on behalf of

5

herself and a proposed class defined as “[a]ll persons within the State

of Ames who purchased a Meaties product that was labeled as an ‘all

meat treat’ from May 7, 2011 to July 17, 2014.” Id. (alteration in

original). Ames Meat filed a motion to dismiss, which the district court

denied on March 18, 2016. J.A. 4. The court allowed limited class

discovery, which was closed on September 30, 2016. Id. The next day,

Lowe moved for class certification under Rule 23(b)(3). The district

court denied that motion on two independent grounds.

First, relying on the Supreme Court’s divided opinion in Shady

Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393 (2010),

the court held that Rule 23 could not “displace” the class action

limitation in ADTPA § 1001.9(b) without thereby violating the REA,

J.A. 7–8. Therefore, Ames law prevented Lowe’s claim from being

certified as a class action in federal court.

Second, the court found that Rule 23’s implied ascertainability

standard, J.A. 8, required “objective criteria” in order to “test the

accuracy” of class membership, and that the use of affidavits was

insufficient for that purpose. J.A. 9.

Lowe timely appealed, and this Court granted review on

January 20, 2017. J.A. 1.

6

SUMMARY OF ARGUMENT

I. Federal Rule of Civil Procedure 23 permits a federal court

sitting in diversity to certify a class action under the Ames Deceptive

Trade Practices Act. Rule 23 and Ames law directly conflict. Rule 23

authorizes “any plaintiff, in any federal civil proceeding, to maintain a

class action if the Rule’s prerequisites are met.” Shady Grove, 559 U.S.

at 406 (majority opinion). Ames law bars any plaintiff suing under the

ADPTA from bringing a class action. Ames Rev. Stat. § 1001.9(b).

Rule 23 therefore governs. When a state law and a Federal Rule

conflict, the Federal Rule applies unless it is invalid under (1) the

Constitution or (2) the REA. Hanna v. Plumer, 380 U.S. 460, 470

(1965). Neither is true here.

First, Rule 23 is constitutional. The Constitution permits

Congress to regulate matters that are “rationally capable of

classification” as procedural, Hanna, 380 U.S. at 472, and Rule 23 fits

the bill.

Second, Rule 23 is valid under the REA. Since Sibbach v.

Wilson & Co., 312 U.S. 1 (1941), the proper test for determining a

Federal Rule’s validity under the REA has been whether the Rule

“really regulates procedure.” Id. at 14. The court below replaced that

test with one that goes beyond the Federal Rule at issue to require a

searching inquiry into the relevant state procedural provision.

7

The court selected that test by erroneously following a single

Justice’s concurrence in Shady Grove. J.A. 7–8. In a splintered

decision, the controlling opinion is the “position taken by those

Members who concurred in the judgments on the narrowest grounds.”

Marks v. United States, 430 U.S. 188, 193 (1977) (quoting Gregg v.

Georgia, 428 U.S. 153, 169 n.15 (1976) (plurality opinion)). But Shady

Grove has no “narrowest” opinion because the plurality and

concurrence simply offered different approaches to the same question.

If there were a controlling opinion in Shady Grove, it would be

the plurality’s. Congress made a crucial policy choice when it enacted

the REA, embodying a “prima facie” judgment for a uniform set of

federal rules of civil procedure. Hanna, 380 U.S. at 471. Under

Marks, then, the plurality is the “narrower” opinion in Shady Grove

because it minimizes the instances where a Federal Rule is

invalidated.

Without a Marks mandate to the contrary, this Court must

apply the existing test: whether the Federal Rule “really regulates

procedure.” Rule 23 qualifies. It is a classically procedural device that

aggregates state rights and remedies while leaving their scope and

content unchanged.

Even under Justice Stevens’s Shady Grove concurrence, Rule 23

is valid. His approach examines the state procedural rule to see if it “is

8

so intertwined with a state right or remedy that it functions to define

the scope of [that] right.” Shady Grove, 559 U.S. at 423 (Stevens, J.,

concurring). But the bar to finding this entanglement is “a high one,”

id. at 432, and the Ames statute does not measure up.

Under his analysis, we look to text and purpose; both confirm

that § 1001.9(b) is procedural. Section 1001.9(b)’s text is facially

procedural — it simply declares that an individual “may not bring an

action on behalf of a class.” J.A. 16. This reading comports with

legislative history: Ames prohibited class actions to promote efficiency

by channeling ADTPA suits through the Attorney General. Efficiency

is a “classically procedural” concern. Id. at 435. Under Justice

Stevens’s concurrence, then, Rule 23 is valid.

In any event, the bare holding of Shady Grove resolves this case

because Ames § 1001.9(b) is indistinguishable from the New York

statute preempted in Shady Grove.

In sum, Rule 23 is valid under the REA for three reasons: it

really regulates procedure; it does not define the scope of state rights

or remedies; and it has already been upheld by the Supreme Court

against a state law limitation indistinguishable from § 1001.9(a).

Therefore, this Court should reverse.

9

II. Ascertainability is an implied prerequisite to class

certification that looks to whether a proposed class is “sufficiently

definite” so that it is “administratively feasible” to determine who is a

member. J.A. 8. When interpreting this judicially created

requirement, courts should hew closely to the text Congress enacted in

Rule 23 because they lack authority to introduce freestanding

certification criteria never adopted. See Amchem Prods v. Windsor,

521 U.S. 591, 620 (1997).

However, the lower court introduced just such a freestanding

bar when it denied certification to Lowe’s proposed class. This

imposition was an abuse of discretion. Moreover, the court’s standard,

which requires that absent class members be identified in an

“objectively verifiable” manner, J.A. 9, departs from the text of the

Rule 23 and the weight of authority and undermines the very purposes

of the Federal Rule.

First, this “objective verifiability” requirement is found nowhere

in the text of Rule 23. Indeed, it directly contradicts the Federal Rule’s

notice provision, which contemplates that class members may be

difficult to find — perhaps unreasonably so. See Fed. R. Civ. P.

23(c)(2)(B). Further, the heightened standard renders the requirement

that a class action be a “superior method” of adjudicating a claim

10

largely superfluous. See Briseno v. ConAgra Foods, Inc., 844 F.3d

1121, 1126 (9th Cir. 2017).

Second, ascertainability traditionally requires only that a

proposed class be defined by objective criteria. See Mullins v. Direct

Dig., 795 F.3d 654, 659 (7th Cir. 2015). This requirement that a class

must be defined clearly is sensible because subjective, vague, or

amorphous classes — each of which fail this narrow standard — pose

serious problems of administration for courts. See id. at 659–60. Lowe

provided a time-limited, place-limited, and product-limited class

definition that should have easily met this standard. See J.A. 3.

Third, Rule 23 was carefully calibrated to overcome procedural

hurdles to recovery. See Amchem, 521 U.S. at 617. By aggregating

claims, class members bring cases that promise only small recovery,

unlocking the compensatory and deterrent benefits sought by state

statutes like the ADTPA. Narrow ascertainability faithfully serves

this purpose by preserving the balance present in the rule as written.

Arguments that heightened ascertainability is necessary to

protect the due process rights of class members or defendants are

unfounded. See Mullins, 795 F.3d at 667, 670. Further, heightened

ascertainability is unnecessary to make class actions manageable —

claims management mechanisms make even the most complex class

actions readily administrable.

11

These illusory benefits cannot support such a drastic departure

from the text and traditional understanding of Rule 23. The district

court’s requirement would threaten the viability of the consumer class

action. See Briseno, 844 F.3d at 1132. And its impact would not be

limited to the consumer context: focusing on “objective verifiability”

makes little sense in antitrust or securities cases, where plaintiffs lack

key information at the early stages of litigation. It further provides a

perverse incentive for defendants to avoid retaining identifying

information, in hopes that they may skirt liability through lax record-

keeping.

In the end, the district court’s heightened standard improperly

places the burden on consumers to anticipate corporate wrongdoing. It

is unsupportable as a matter of law, and thus constitutes an abuse of

the district court’s discretion, necessitating remand.

12

ARGUMENT

I. Federal Rule of Civil Procedure 23 permits a federal court sitting in diversity to entertain a class action under the Ames Deceptive Trade Practices Act, notwithstanding § 1001.9(b).

Rule 23 and Ames law provide opposite answers to the same

question: can Willa Lowe maintain her ADTPA claim as a class action?

The text of the Rule “unambiguously” answers the question of class

certification. Shady Grove, 559 U.S. at 406 (majority opinion).1 The

Rule “authorizes any plaintiff, in any federal civil proceeding, to

maintain a class action if the Rule’s prerequisites are met.” Id. It

creates a “categorical rule entitling a plaintiff whose suit meets the

specified criteria to pursue h[er] claim as a class action.” Id. at 398. In

contrast, Ames law bars any plaintiff suing under the ADTPA from

“bring[ing] an action on behalf of a class.” Ames Rev. Stat. § 1001.9(b).

The two provisions are therefore in direct conflict.

Rule 23 governs this case. When the collision between a state

law and a Federal Rule is “unavoidable,” the Federal Rule applies

unless it transgresses (1) the bounds of the Constitution or (2) the

terms of the REA. Shady Grove, 559 U.S. at 398 (majority opinion);

Hanna, 380 U.S. at 470. Neither is true. Thus, the Federal Rule

governs.

1 Section II-A of Shady Grove was joined by five Justices and is controlling. Abbas v. Foreign Policy Grp., LLC., 783 F.3d 1328, 1337 (D.C. Cir. 2015).

13

Determining the preclusive effect of a state provision on a

Federal Rule is a question of law reviewed de novo. Rodriguez v. Fly,

— F.2d — (Ames Cir. 1985).

A. Rule 23 is valid under the Constitution.

The bar for constitutionality here is low. The Constitution

permits Congress to “regulate matters which, though falling within the

uncertain area between substance and procedure, are rationally

capable of classification as either.” Hanna, 380 U.S. at 472. That

middle ground includes rules that rationally relate to “the judicial

process of enforcing rights and duties recognized by substantive law.”

Sibbach, 312 U.S. at 14. Rule 23 is a procedural device that, at

minimum, falls within this intermediate territory. It sets out the

preconditions for maintaining a class action in federal court and

therefore directly relates to “the practice and pleading” of a litigant’s

claim. Id. Such a rule is “rationally capable of classification” as

procedural. Id.

On this point, Shady Grove controls. Justice Scalia’s plurality

opinion held that Rule 23 fell within Congress’s “undoubted power to

prescribe rules for the courts it has created.” Shady Grove, 559 U.S. at

406 (plurality opinion). Similarly, Justice Stevens’s concurrence

recognized that Rule 23 fell within Congress’s “constitutional power ‘to

supplant state law’ with rules that are ‘rationally capable of

classification as procedure.’” Id. at 422 (Stevens, J., concurring)

14

(quoting id. at 406 (plurality opinion)). Lower courts applying Shady

Grove have unanimously followed suit; no court has held that Congress

lacks the constitutional power to regulate class actions in federal

courts. See, e.g., Lisk v. Lumber One Wood Preserving, LLC, 792 F.3d

1331, 1336 (11th Cir. 2015). Rule 23 is therefore valid under the

Constitution.

B. Rule 23 is valid under the Rules Enabling Act.

Under the REA, the Supreme Court has “the power to prescribe

general rules of practice and procedure,” 28 U.S.C. § 2072(a) (2012), so

long as they do not “abridge, enlarge, or modify any substantive right,”

id. § 2072(b). In Sibbach, the Supreme Court clarified that a Federal

Rule meets both of these requirements if the Rule “really regulates

procedure — the judicial process for enforcing rights and duties

recognized by substantive law and for justly administering remedy and

redress for disregard or infraction of them.” 312 U.S. at 14. Rule 23

qualifies.

1. Rule 23 is valid under the Rules Enabling Act because it “really regulates procedure.”

In Shady Grove, the Court held that Rule 23 passed that test,

displacing a New York statute barring class actions for statutory

penalties. 559 U.S. at 397–98 (majority opinion); id. at 416 (plurality

opinion). Four Justices agreed that in evaluating a Federal Rule’s

validity under the REA, “it is not the substantive or procedural nature

15

or purpose of the affected state law that matters, but the substantive or

procedural nature of the Federal Rule.” Id. at 410 (emphases added).

Justice Stevens went further. Instead of focusing only on the

Federal Rule, he read § 2072(b) of the REA to require examination of

the conflicting state law to determine whether that law was

substantive. See id. at 424 (Stevens, J. concurring). But he did not

stop there. He noted — in dicta — that even displacement of an

“undeniably procedural” state rule might nevertheless run afoul of the

REA if it is “sufficiently intertwined with a state right or remedy.” Id.

at 428. The court below reached its decision by relying on Justice

Stevens’s expansive reading of the REA’s requirements. See J.A. 7.

But that reliance was misguided.

a) Justice Stevens’s concurrence does not control.

For Justice Stevens’s opinion to control, it must be the “position

taken by those Members who concurred in the judgments on the

narrowest grounds.” Marks, 430 U.S. at 193 (quoting Gregg, 428 U.S.

at 169 n.15 (plurality opinion)). However, applying the Marks test to

Shady Grove requires this Court to first ask: narrow with respect to

what?

There is no principled answer. If the relevant metric is

invalidation of a Federal Rule, Justice Stevens sweeps more broadly.

In his view, it is not enough for a federal rule to “really regulate

16

procedure.” It must also avoid conflicting with a state procedural rule

that is “bound up” with a state right or remedy. Thus, Justice

Stevens’s approach logically leads to more — not fewer —

invalidations. Only if the relevant metric is preemption of state law

can Justice Stevens’s rationale be considered narrower. So the choice

between which outcome to measure — invalidation or preemption —

collapses into the ultimate question: whether to favor the state or

federal rule.

This dilemma dooms the Marks inquiry. Marks applies only

“when one opinion is a logical subset of other, broader opinions.” King

v. Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991) (en banc). In other

words, “the narrowest opinion must represent a common denominator

of the Court’s reasoning.” Id. Shady Grove has no common

denominator. Instead, it offers two “distinct approaches” to the same

issue. Id. One favors state law; the other federal. One favors

invalidation; the other preemption. Without a background rule telling

this Court which result to measure, “asking which of [the] two opinions

is narrower is akin to asking, ‘Which is taller, left or right?’” Lisk, 792

F.3d at 1337. Thus, Stevens’s concurring opinion cannot possibly

control. See id. (refusing to piece together a controlling opinion from

Stevens’s concurrence); see also Abbas, 783 F.3d at 1337 (finding that

“neither [Shady Grove] opinion can be considered the Marks middle

17

ground or narrowest opinion”); Los Gatos Mercantile, Inc. v. E.I.

DuPont De Nemours & Co., 2015 WL 4755335, at *21 (N.D. Cal. Aug.

11, 2015) (same); In re Lithium Ion Batteries Antitrust Litig., 2014 WL

4955377, at *20 n.20 (N.D. Cal. Oct. 2, 2014) (same); In re Hydroxycut

Mktg. & Sales Practices Litig., 299 F.R.D. 648, 653 (S.D. Cal. 2014)

(same). Revealingly, the only courts to adopt Justice Stevens’s

concurrence as controlling have done so in footnotes that simply

assume his opinion to be the “narrowest” without explaining how. See

Whitlock v. FSL Mgmt., LLC, 843 F.3d 1085, 1091 n.2 (6th Cir. 2016);

Garman v. Campbell Cty., Sch. Dist. No. 1, 630 F.3d 977, 983 n.6 (10th

Cir. 2010).

A false positive under Marks turns “a single opinion that lacks

majority support into law.” King, 950 F.2d at 782. Therefore, courts

must be especially vigilant not to “endow” the opinion of a single

Justice “with controlling force, no matter how persuasive it may be.”

Id. This Court should avoid that pitfall by refusing to divine a Marks

mandate from the splintered opinions in Shady Grove.

b) If anything, the plurality opinion controls.

Only Justice Scalia’s plurality opinion in Shady Grove can

possibly lay claim to being the narrowest.2 Under Marks, to deem an

opinion “narrower” requires making a choice about which outcomes are

2 Indeed, at least two courts have followed the plurality opinion. See, e.g., Jones v. United Parcel Serv., Inc., 674 F.3d 1187, 1206 (10th Cir. 2012); MKB Constructors v. Am. Zurich Ins. Co., 2014 WL 2526901, at *8 n.5 (W.D. Wash. May 27, 2014).

18

ordinary and which are divergent. Here, Congress made that choice

when it enacted the REA. The Act struck a decisive blow in favor of

federal uniformity: its express purpose was to authorize a uniform set

of rules of civil procedure for federal courts, preempting state law to

the contrary. Hanna, 380 U.S. at 473.3 Through the Act, Congress has

instructed federal courts to apply the Federal Rules, and courts “can

refuse to do so only if the Advisory Committee, this Court, and

Congress erred in their prima facie judgment that the Rule” complies

with the Constitution and the REA. Hanna, 380 U.S. at 471. Under

Marks, then, the “narrower” opinion in Shady Grove should minimize

the instances in which a court finds that Congress and the Supreme

Court erred in their “prima facie judgment” that the federal rule is

valid.

Justice Scalia’s approach does exactly that. His opinion would

invalidate a federal rule only when it doesn’t “really regulate

procedure” — an approach that requires looking only to the

substantive or procedural nature of the challenged federal rule. Shady

Grove, 559 U.S. at 410 (plurality opinion). Such an approach

minimizes the instances in which a Federal Rule is invalidated under

the REA. In contrast, Justice Stevens’s concurrence would invalidate

3 See also John Hart Ely, The Irrepressible Myth of Erie, 87 Harv. L. Rev. 693, 721 (1974) (“About all we can be sure of respecting the Enabling Act’s intendment is that it was designed to authorize a comparatively enlightened set of Federal Rules of Civil Procedure to be applied in all federal courts.”).

19

even concededly procedural rules if they displace state rules that are

“sufficiently intertwined with a state right or remedy.” Id. at 416

(Stevens, J., concurring). This approach would result in the

invalidation of more federal rules than Justice Scalia’s more limited

inquiry. Justice Stevens’s approach therefore reflects a comparatively

greater departure from the policy of federal uniformity established by

Congress in the REA. If Marks guides this Court’s reasoning, only

Justice Scalia’s plurality opinion can be considered “narrower.”

c) Because Shady Grove provides no single binding rationale, Sibbach controls and validates Rule 23.

Absent an authoritative word from Shady Grove, the proper

approach “is to follow the Court’s pre-existing precedent in Sibbach.”

Abbas, 783 F.3d at 1337. Since 1949, the test articulated by Sibbach

— whether the federal rule “really regulates procedure” — has been

“settled law.” Shady Grove, 559 U.S. at 413 (plurality opinion); see also

Abbas, 783 F.3d at 1337 (“Unless and until the Supreme Court

narrows or overrules its decision in Sibbach, that case remains good

law and is binding on lower courts.”). However, Justice Stevens would

replace that test with one that considers the relationship between the

Federal Rule and state substantive rights. See Abbas, 783 F.3d at

1336 (“Justice Stevens’s opinion . . . would have distinguished and

limited Sibbach.”). But while the Supreme Court can overturn its own

precedent with “special justification,” Patterson v. McLean Credit

20

Union, 491 U.S. 164, 173 (1989), the Ames Circuit cannot do it for

them. Since Justice Stevens’s concurrence does not control under

Marks, Sibbach supplies the test for determining whether a Federal

Rule exceeds the authority granted by the REA.

Under Sibbach, procedural rights remain procedural even when

they touch upon substantive rights. The essence of Sibbach is that, to

avoid “endless litigation and confusion,” courts must not consider even

“important” rights like “freedom from invasion of the person” that are

merely implicated by procedural restrictions and requirements.

Sibbach, 312 U.S. at 14. Instead, courts must focus their REA analysis

exclusively on whether a federal rule really does enforce and

administer substantive claims in the first place. Id.

That is precisely what Rule 23 does. It is “fundamentally a

procedural device.” Rubenstein, Newberg, supra, § 1:1. It changes

nothing about an Ames consumer’s right to receive what she pays for.

Nor is Lowe’s right expanded or modified by the decision to enforce

that right through class procedures. Rule 23 “merely enables a federal

court to adjudicate claims of multiple parties at once, instead of in

separate suits.” Shady Grove, 559 U.S. at 408 (plurality opinion).

“[L]ike traditional joinder,” class certification “leaves the parties’ legal

rights and duties intact and the rules of decision unchanged.” Id.; see

also id. at 432 (Stevens, J., concurring) (assuming that Rule 23

21

“dictates an answer to a traditionally procedural question”). Rule 23

aggregates existing claims but does not impact Ames Meat’s

substantive exposure to liability. Each member of the proposed class

could have brought an individual claim without this suit, Ames Rev.

Stat. § 1001.9(a), and each member can still bring an individual claim

by opting out of the class, Fed. R. Civ. P. 23(c)(2)(B)(v). The fact that

convenient or inexpensive class procedures might encourage more

plaintiffs to collect on their independently existing claims “is just the

sort of ‘incidental effect[]’ [the Court has] long held does not violate

§ 2072(b).” Shady Grove, 559 U.S. at 408 (plurality opinion) (quoting

Miss. Pub. Corp. v. Murphree, 326 U.S. 438, 446 (1946) (internal

quotation marks omitted)). Thus, Rule 23 “really regulates procedure,”

irrespective of any secondary effects on substantive rights.

d) The correct reading of Sibbach avoids unnecessary and unadministrable inquiries into state law.

Focusing on whether the federal rule really regulates procedure

avoids burdening federal judges with “hundreds of hard questions”

about the “substantive or procedural character of countless state rules

that may conflict with a single Federal Rule.” Id. at 415; see also id. at

426 (Stevens, J. concurring) (implying that the plurality’s approach

would be “easiest on federal courts,” “administrable,” and “in service of

simplicity”). Justice Stevens’s approach does not just create fifty-one

sets of Federal Rules. It creates fifty-one sets of Federal Rules whose

22

validity varies case-by-case, depending on (1) the state law provision

the Rule displaces in a particular scenario and (2) whether that

provision can be characterized as substantive or procedural-but-

sufficiently-intertwined-with-a-right-or-remedy. Such a patchwork

approach to federal procedure undermines “one of the shaping

purposes of the Federal Rules . . . to bring about uniformity in the

federal courts,” Hanna, 380 U.S. at 472 (quoting Lumbermen’s Mut.

Cas. Co. v. Wright, 322 F.2d 759, 764 (5th Cir. 1963)), and allows

states to exercise a line-item veto over the Federal Rules by simply

couching procedural judgments in substantive terms. To allow Ames

to invalidate Rule 23 here “would be to disembowel either the

Constitution's grant of power over federal procedure or Congress's

attempt to exercise that power in the Enabling Act.” Id. at 473–74.

2. Alternatively, Rule 23 is valid under the Rules Enabling Act because ADTPA § 1001.9 does not “define the scope” of a state right.

Examining Rule 23’s interaction with § 1001.9(b) only confirms

that allowing the class action to proceed comports with the REA. The

Act prohibits federal rules from modifying substantive rights.

§ 2072(b). Even under Justice Stevens’s approach to this requirement,

however, a court will strike down a Federal Rule only if it conflicts

with a state procedural rule that is “so intertwined with a state right

or remedy that it functions to define the scope of the state-created

right.” Shady Grove, 559 U.S. at 423 (Stevens, J., concurring). This

23

level of entanglement is difficult for the Defendant to demonstrate

here, as “the bar for finding an Enabling Act problem is a high one.”

Id. at 432. An REA violation cannot rest on the “mere possibility” of a

change in the scope of the state right: for Ames Meat to unseat Rule

23, “[t]here must be little doubt.” Id. Justice Stevens’s two-step

reasoning from text and legislative purpose in Shady Grove dictates

that ADTPA §1001.9(b) is properly procedural. Therefore, Rule 23

governs.

a) The text of § 1001.9(b) demonstrates the provision is procedural and does not define the scope of substantive rights.

Ames’s prohibition on consumer class actions within the ADTPA

is procedural on its face. Section 1001.9(b) does not mention rights or

remedies; it states only that individual consumers “may not bring an

action on behalf of a class.” J.A. 16. Although the inquiry does not end

here for Justice Stevens, the considerations that render Rule 23

facially procedural for the plurality in Shady Grove apply with equal

force to § 1001.9(b). Like joinder, class actions “merely enable[] . . .

court[s] to adjudicate claims of multiple parties at once,” and they do

not disturb “parties’ legal rights and duties” or “the rules of decision.”

Id. at 408 (plurality opinion). Thus, a textual provision regulating

class actions, like one regulating joinder, is perforce procedural.

Indeed, the text of Ames’s § 1001.9(b) is essentially identical to

the New York statute at issue in Shady Grove. There, the New York

24

provision required that unless authorized by another statute, “an

action to recover a penalty, or minimum measure of recovery created or

imposed by statute may not be maintained as a class action.” N.Y.

C.P.L.R. § 901(b) (McKinney 2006). Similarly, Ames’s § 1001.9(b)

simply bars any “consumer or other person” from “bringing an action

on behalf of a class.” Both statutes identify a subset of claims and

prevent them from being brought as a class in state courts. The New

York provision targeted claims eligible for noncompensatory damages;

the Ames provision targets claims brought under the ADTPA. If the

“plain textual reading” of New York’s § 901(b) indicated that it was

procedural, Shady Grove, 559 U.S. at 436 (Stevens, J., concurring),

then Ames’s § 1001.9(b) is procedural as well.

Since the meaning of the text is clear, appeals to legislative

purpose that require “extensive speculation” about the Ames

legislature’s motives are irrelevant. Id. The legislative history behind

the New York statute in Shady Grove did indicate that one of the

rationales guiding § 901(b) was the legislature’s desire to limit

statutory damages. Id. at 432. Yet even record evidence of this

purpose was not enough to override the statute’s clear text. Id. at 432–

33. Simply put, a limitation on statutory damages was “not the law

that New York adopted.” Id. at 433. Just so here. Even if the record

were to show that the Ames legislature intended § 1001.9(b) to

25

function as a limitation on damages, that is not the statute they

enacted. The provision could have allowed for class actions and then

simply set a ceiling on the amount of recovery. The legislature also

could have included a statement of an intention to limit recovery. But

no such explanation appears in the statement of legislative intent in

§ 1001.2. Instead, Ames made its prohibition on class actions in

§1001.9(b) purely procedural. Rather than conflict with the plain text

of the provision, the legislative purposes behind the ADTPA support its

procedural characterization.

b) The legislative purposes behind § 1001.9(b) are inherently procedural and are not aimed at defining substantive rights.

Justice Stevens’s approach would turn next to legislative

history. If a facially procedural state provision was adopted for “some

policy reason” apart from defining the scope of a substantive right, the

court will not second guess the plain reading of the statute. Id. In

Shady Grove, Justice Stevens named a number of possible reasons a

legislature might prefer not to allow class actions when they are

unnecessary to encourage litigation. Among others, a state might view

class actions as an inefficient use of state court resources or as

burdening state courts with “unwieldy lawsuits.” Id. at 435. Either

would explain why Ames chose to disallow class actions for a category

of claims, and neither involves defining the scope of a substantive

right. Where evidence for these procedural rationales exists, the court

26

must “respect the plain textual reading” of the statute at issue. Id. at

436. Section 1001.9(b) fits the bill. Ames crafted the ADTPA to

maximize efficient use of state resources by channeling claims through

the mechanism of the Attorney General. See Ames Rev. Stat. § 1001.4.

Efficiency judgments are hallmarks of the procedural choices that both

states and Congress are permitted to make for their own courts; they

do not define substantive rights.

As an initial matter, the legislative history of § 1001.9(b) gives

no indication that the Ames legislature prohibited class actions as a

crude means of protecting defendants from excessive liability — the

reason considered and rejected in Shady Grove. In fact, the statute’s

statement of legislative intent encourages courts to construe the Act

broadly “to effect the goals embodied herein of effective consumer

protection.” J.A. 12 (emphasis added). The ADTPA does not merely

lack the potentially substantive purpose behind Shady Grove’s New

York statute; the Act flatly contradicts it.

Instead, Ames crafted the ADTPA — including its prohibition on

class actions — to maximize efficiency in state court proceedings

through the use of the Attorney General. First, the Act reduces costs

to potential plaintiffs by tasking the Attorney General with the initial

steps of litigation. The Attorney General has the duty to investigate

complaints, Ames Rev. Stat. § 1001.4(a), bring actions on behalf of the

27

state, and obtain restraining orders and injunctions against offending

parties, id. § 1001.8(a). The savings for complainants only increase

with the added responsibility of state departments to “cooperate with

and assist” the Attorney General, id. § 1001.4(b), and the power of

courts to appoint receivers and to sequester defendant assets, id. §

1001.8(b). Second, this framework saves litigation costs for potential

defendants by allowing them to meet with the Attorney General or

district attorney to resolve conflicts out of court. See id. § 1001.8(a).

This alternative dispute resolution mechanism furthers the law’s

purpose to “reward those entities that conduct their business in an

honest manner.” J.A. 18. Third, by limiting class actions to

representative suits brought by the Attorney General, the Act reduces

the burden on state courts of consolidating numerous cases concerned

with the same violation. In short, one of the ADTPA’s key concerns is

to deliver remedies in a cost-effective way, without overburdening

state courts. To that end, § 1001.9(b) simply channels litigants

through the Attorney General.

Choosing the most efficient method of accessing remedies does

not define the scope of those remedies; it merely establishes the best

procedures to deliver them. This is precisely the sort of “classically

procedural calibration” Justice Stevens identified in Shady Grove: the

state legislature decided that the people of Ames are sufficiently

28

served by turning to the Attorney General. Under this logic, consumer

class actions are not “necessary” for the state of Ames, Shady Grove,

559 U.S. at 435 (Stevens, J., concurring), and allowing them would

only impose extra costs on its judicial system. Governor Davis, Jr.’s

signing statement affirms as much, describing the Attorney General’s

sole ability to bring representative actions as “procedur[al],” aimed at

“vindicating public rights in the most efficient manner possible.” J.A.

18 (emphasis added). Thus, it would be wrong to describe the role of

the Attorney General as a “remedy” in itself as other courts have

suggested. See, e.g., Bearden v. Honeywell Int’l Inc., 2010 WL 3239285,

at *10 (M.D. Tenn. Aug. 16, 2010). Within the ADTPA, the Attorney

General is a channel through which litigants pursue their remedies, all

the while reducing societal costs through centralization. How to bring

actions most efficiently for a given constituency is a procedural

question, and one that Ames and the federal government have

answered differently.

It is of no moment that § 1001.9(b) appears within the ADTPA

rather than as part of Ames’s general procedural rules. While Justice

Stevens did consider the location of § 901(b) in Shady Grove, he did so

as one means of discerning legislative purpose, not as a per se rule.

See 559 U.S. at 434 n.17 (Stevens, J., concurring). Strong evidence of

substantive legislative purpose remains the touchstone, and such

29

evidence is nowhere found in § 1001.9(b). In contrast, the procedural

efficiency rationale considered dispositive by Justice Stevens appears

everywhere in the ADTPA, and it applies just as forcefully on a

statute-by-statute basis as on a state-wide basis. Every time Ames

creates causes of action and protects new rights, the state must decide

whether or not to let those suits proceed as class actions. It is

eminently reasonable for the state legislature to make that decision on

a case-by-case basis after considering what class actions the state

already allows and the current burdens on its courts. If anything

should be drawn from the statutory location of the class action

prohibition, it is that Ames is less averse to representative actions than

is New York — the ADTPA still allows them to be brought by the

Attorney General. See Lisk, 792 F.3d at 1336 (noting that a total ban

on class actions seems more substantive than a statute merely limiting

who can bring a class action).

At bottom, Ames was making a judgment about efficiency in its

own courts. It is reasonable for Congress to hew a different path. The

federal government has a much larger jurisdiction and may have

inadequate resources to maintain representative suits on a national

basis. A federal version of Ames’s Attorney General provision may

therefore be impracticable. Instead, for litigation in federal courts,

Congress has made the procedural policy judgment that “the class

30

action mechanism is [necessary] to overcome the problem that small

recoveries do not provide the incentive for any individual to bring a

solo action prosecuting his or her rights.” Amgen Inc. v. Conn. Ret.

Plans & Tr. Funds, 133 S. Ct. 1184, 1202 (2013) (quoting Amchem, 521

U.S. at 617). This is a judgment to which Congress is entitled.

3. In any event, Rule 23 is valid under the Rules Enabling Act by the bare holding of Shady Grove.

Regardless of how this Court interprets Shady Grove, its result

decides this case because the New York statute at issue there is

indistinguishable from § 1001.9(b). See Lisk, 792 F.3d at 1335

(upholding Rule 23 in the face of state class action limitations by

reasoning directly from Shady Grove’s result); In re Hydroxycut Mktg.

& Sales Practices Litig., 299 F.R.D. 648, 653 (S.D. Cal. 2014) (same); In

re Optical Disk Drive Antitrust Litig., 2012 WL 1366718, at *8 (N.D.

Cal. Apr. 19, 2012) (same).

Just as Lisk was indistinguishable from Shady Grove, this case

is indistinguishable from Lisk. The court in Lisk found “no relevant,

meaningful distinction” between the statute at issue and the statute in

Shady Grove; thus, Rule 23 displaced state law regardless of which

opinion the court followed. 792 F.3d at 1335. The same is true here.

In Lisk, the displaced class action limitation was “part of the statute

that created the statutory penalty,” but the court concluded that “how

a state chooses to organize its statutes affects the analysis not at all.”

31

Id. at 1336 (emphasis added). The same is true here. In Lisk, the

class limitation was limited to Alabama statutory law, but the court

nevertheless declined to distinguish it from the general prohibition in

Shady Grove because the actual “claim at issue in Shady Grove arose

under New York substantive law.” Id. The same is true here. In Lisk,

the class limitation had an exception for representative actions

brought by the Attorney General. Id. But the availability of attorney-

general suits only made Lisk an even “stronger case than Shady Grove

for applying Rule 23” because the limitation did not preclude class

actions entirely, but simply required they be brought by the Attorney

General. Id. The same is true here. Thus ADTPA § 1001.9(b), like the

prohibition in Lisk, cannot unseat Rule 23 without violating the bare

holding of Shady Grove.

II. The district court abused its discretion by imposing a heightened ascertainability requirement.

Federal Rule of Civil Procedure 23 was enacted through “an

extensive deliberative process” by a diverse group of experts, including

the Supreme Court and Congress. Amchem, 521 U.S. at 620. The

Supreme Court has emphasized that “[t]he text of a rule thus proposed

and reviewed limits judicial inventiveness.” Id. Thus, federal courts

“lack authority to substitute for Rule 23’s certification criteria a

standard never adopted.” Id. at 622.

32

In the Ames Circuit, a proposed class must be “ascertainable” to

be certified. See Woodward v. Booztron Elecs., — F.3d — (Ames Cir.

2014). In other words, a class must be “sufficiently definite so that it is

administratively feasible for the court to determine whether a

particular individual is a member.” Id. (quoting Alan Wright & Arthur

Miller et al., Federal Practice & Procedure § 1760 (3d ed. 1998)). But

the district court went further — converting the basic principle that

“the general outlines of the membership of the class [be] determinable

at the outset of the litigation,” Wright & Miller, supra, § 1760, into a

freestanding obstacle almost insurmountable in practice. The new

“objective verifiability” test that the district court added to the implied

ascertainability requirement, see J.A. 9, departs from Rule 23’s text

and the weight of authority, and undermines Rule 23’s core purpose of

enabling efficient class actions.

The district court erred when it grafted its stringent

ascertainability standard onto the express provisions of Rule 23,

frustrating the policy choices embedded in the rule as written. See

Amchem, 521 U.S. at 622. Thus, the district court’s denial of

certification to Lowe’s proposed class was an abuse of discretion. See

Rodriguez v. Fly, — F.2d — (Ames Cir. 1985); see also Koon v. United

States, 518 U.S. 81, 100 (1996) (“A district court by definition abuses

its discretion when it makes an error of law.”).

33

A. The district court’s heightened ascertainability standard is inconsistent with the text of Rule 23.

When interpreting a statute or federal rule, courts lack

discretion to deviate from its plain meaning. See Delta Airlines, Inc. v.

August, 450 U.S. 346, 350 (1981). Courts employ traditional tools of

statutory construction when interpreting a Federal Rule. See Beech

Aircraft Corp. v. Rainey, 488 U.S. 153, 163 (1988). And statutory

interpretation “begins with the text.” Ross v. Blake, 136 S. Ct. 1850,

1856 (2016).

1. Rule 23’s text contains no express ascertainability requirement.

Ascertainability is an implied prerequisite to certification found

nowhere in Rule 23.4 To obtain certification, Lowe’s proposed class

must satisfy Rule 23(a)’s express “prerequisites of numerosity,

commonality, typicality, and adequacy of representation.” Amgen, 133

S. Ct. at 1191. Once these conditions are met, the proposed class must

also fit into one of three categories. See Fed. R. Civ. P. 23(b). Lowe

proposes her class under Rule 23(b)(3), which requires the

predominance of questions common to the class and that a class action

be a superior means of adjudicating a controversy. See Fed. R. Civ. P.

23(b)(3). One of the considerations in the “superiority” inquiry is

4 Far from “nearly unanimous,” J.A. 8, courts and scholars have fiercely debated the very existence of the ascertainability requirement, see generally Geoffrey C. Shaw, Note, Class Ascertainability, 124 Yale L.J. 2354 (2015), and the matter is anything but settled, compare, e.g., Briseno, 844 F.3d at 1124 n.4, with Carrera v. Bayer Corp., 727 F.3d 300, 306–07 (3d Cir. 2013).

34

whether a class action will be manageable. See Fed. R. Civ. P.

23(b)(3)(D). The district court concedes, as it must, that

ascertainability is found nowhere in Rule 23’s itemized list of

requirements. See J.A. 8. Because the ascertainability requirement is

itself judicially created, this Court should proceed with caution when

defining its contours.

2. An aggressive formulation of ascertainability contradicts certain provisions of Rule 23 and renders others superfluous.

The lower court’s ascertainability standard would automatically

bar classes that Rule 23’s notice requirement specifically contemplates.

Rule 23(c)(2)(B) provides that notice to absent class members must be

“the best notice practicable under the circumstances, including

individual notice to all members who can be identified through

reasonable effort.” Fed. R. Civ. P. 23(c)(2)(B) (emphases added); cf.

Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 318 (1950)

(holding that notice “reasonably calculated” to inform the relevant

parties under the circumstances satisfies due process). Thus, the rule

contemplates that classes may properly include parties who can never

be identified or for whom identification would require unreasonable

effort. Adequate notice has never required that class membership be

objectively verifiable before certification. At most, it requires that a

class be clearly defined, so that individuals can determine if they are

members and opt out if necessary. Thus, the plain meaning of Rule 23

35

cannot be squared with the district court’s objective verifiability

standard.

Further, stringent ascertainability would render Rule 23’s

express “superiority” requirement superfluous by seeking to

accomplish the same goal in a more demanding way. Both

requirements invite courts to “evaluate likely information[-]gathering

difficulties and dismiss classes presenting overwhelming burdens.”

Shaw, supra, at 2383. And courts should be “hesitant to adopt an

interpretation” that renders superfluous a provision of a congressional

enactment. See, e.g., Mackey v. Lanier Collection Agency & Serv., Inc.,

486 U.S. 825, 837 (1988) (collecting cases); see also Briseno, 844 F.3d at

1126. But the problem with substituting the superiority requirement

enacted in Rule 23 with the district court’s stringent standard goes

deeper than mere redundancy. Under Rule 23(b)(3), courts consider

whether “a class action is superior to other available methods for fairly

and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3)

(emphasis added). However, courts applying heightened

ascertainability ignore this bedrock comparative feature. For instance,

the Carrera court focused only on the cost-of-the-class-action side of

the equation when it wrote that, if a class cannot be ascertained in an

economical manner, “significant benefits of a class action are lost.”

Carrera, 727 F.3d at 307. Under ordinary class certification analysis,

36

the court should have also considered whether the proposed class of

purchasers had alternative avenues for redress. But it didn’t. See id.

This one-sided approach, adopted by the district court here, is at best

redundant and at worst unfaithful to the comparative superiority

analysis enacted in the text.

B. Willa Lowe’s class satisfies the traditional view of ascertainability.

While the Ames Circuit requires class membership

determinations to be “administratively feasible,” it has not elaborated

the meaning of that amorphous phrase. See J.A. 8. As the Ames

Circuit “flesh[es] out” its notion of ascertainability for the first time,

id., this Court should align itself with the weight of authority by

reading administrative feasibility to require only that a class be

objectively defined, not objectively verifiable.

1. Administrative feasibility should follow the traditional view of ascertainability, which focuses on whether a class is defined using objective criteria.

Courts routinely view ascertainability at the certification stage

as a question of whether the class definition is adequately precise —

not whether the identities of class members are verifiable. See

Mullins, 795 F.3d at 659. “When courts wrote of [the] implicit

requirement of ‘ascertainability,’ . . . [t]hey were not focused on

whether, given an adequate class definition, it would be difficult to

identify particular members of the class.” Id. On this view, for a class

37

definition to be ascertainable, “the court must be able to resolve the

question of whether class members are included or excluded from the

class by reference to objective criteria.” Rikos v. Procter & Gamble Co.,

799 F.3d 497, 525 (6th Cir. 2015) (quoting Young v. Nationwide Mut.

Ins. Co., 693 F.3d 532, 538 (6th Cir. 2012)); see also Saltzman v. Pella

Corp., 257 F.R.D. 471, 475 (N.D. Ill. 2009), aff’d, 606 F.3d 391 (7th Cir.

2010) (“[T]he traditional view of ascertainability [is] as an adjunct to

the class definition, requiring only that a class be ‘defined by objective

criteria.’”); Stewart v. Cheek & Zeehandelar, LLP, 252 F.R.D. 387, 391

(S.D. Ohio 2008) (“[T]he touchstone of ascertainability is whether the

class is objectively defined.”).

Applying this traditionally low bar for ascertainability, courts

have repeatedly found that objectively defined classes are certifiable.

See, e.g., Matamoros v. Starbucks Corp., 699 F.3d 129, 139 (1st Cir.

2012) (“The presence of . . . an objective criterion overcomes the claim

that the class is unascertainable.”); In re Methyl Tertiary Butyl Ether

Prods. Liab. Litig., 209 F.R.D. 323, 337 (S.D.N.Y. 2002) (“Here,

plaintiffs’ class definition refers only to objective criteria . . . . Thus,

this proposed class meets Rule 23(a)’s implied requirement that it be

theoretically ‘ascertainable.’”).

While the Third Circuit in Carrera understood “administrative

feasibility” as an additional inquiry distinct from clarity of class

38

definition, see 727 F.3d at 306–08, that reasoning has been widely

criticized. See, e.g., Briseno, 844 F.3d at 1126–27 (rejecting Carrera

and summarizing criticism by other circuits); Rikos, 799 F.3d at 525

(“We see no reason to follow Carrera, particularly given the strong

criticism it has attracted from other courts.”); Mullins, 795 F.3d at 662

(“The Third Circuit’s approach in Carrera . . . goes much further than

the established meaning of ascertainability and in our view misreads

Rule 23.”). Because the vague notion of “administrative feasibility” has

yet to be defined in the Ames Circuit, this Court is free to reject

Carrera’s flawed reasoning. Instead, the Ames Circuit should adopt

the traditional view of ascertainability by equating administrative

feasibility with the requirement of an objective class definition. See,

e.g., Ebert v. Gen. Mills, Inc., 2015 WL 867994, at *12 (D. Minn. Feb.

27, 2015) (“[T]he [class] description must be sufficiently definite that it

is administratively feasible for the court to determine whether a

particular individual is a member.”); McBean v. City of New York, 260

F.R.D. 120, 133 (S.D.N.Y. 2009) (“A class is ascertainable when defined

by objective criteria that are administratively feasible, without a

subjective determination.”). As the Ames Circuit defines

administrative feasibility for the first time, this Court should view the

concept through the traditional lens, requiring only that a class be

defined by objective criteria.

39

2. Lowe’s proposed class satisfies the conventional view of ascertainability because it is defined using objective criteria.

The putative class, described as “[a]ll persons within the State of

Ames who purchased a Meaties product that was labeled as an ‘all

meat treat’ from May 7, 2011 to July 17, 2014,” J.A. 3, is delimited by

objective criteria and therefore satisfies the traditional ascertainability

requirement. By circumscribing a group with reference to a specific

place, product, and time, the proposed class definition parallels that of

other consumer classes that have been recently upheld as certifiable.

In Briseno, the Ninth Circuit upheld class certification because a class

was “defined by an objective criterion: whether class members

purchased Wesson oil during the class period.” 844 F.3d at 1124.

Similarly, the class in Mullins was found to be ascertainable because

“[i]t identifie[d] a particular group of individuals (purchasers of

Instaflex)” affected in a “particular way” within “a specific period in

particular areas.” 795 F.3d at 660–61. Like those classes, Lowe’s

proposed class is circumscribed using definite and objective criteria,

including a specific geography, purchased product, and time period.

Because Lowe’s class is defined with clear and objective criteria,

it is an administratively feasible class. In Rikos, the court found a

class to be ascertainable merely because it was objectively defined.

799 F.3d at 525. The fact that subclasses could be determined “with

reasonable — but not perfect — accuracy” was not a bar to

40

certification. Id. Because “[t]he proposed class [was] defined by

objective criteria” — purchasers of a particular nutritional supplement

in specific states — the class was ascertainable, even though

determining subclasses “would [have] require[d] substantial review . . .

supplemented through the use of receipts, affidavits, and a special

master to review individual claims.” Id. Similarly, here, through the

use of affidavits signed under penalty of perjury, the clearly defined

group of class members who purchased Ames Meat’s mislabeled

products can be determined in an administratively feasible manner.

Lowe’s proposed class, defined with reference to objective and

immutable criteria, differs from the putative class denied certification

in Brecher v. Republic of Argentina, 806 F.3d 22 (2d Cir. 2015).

Brecher read the ascertainability requirement through the traditional

lens of adequacy of the class definition;5 however, the Brecher class,

defined as all owners of beneficial interests in a particular bond series

without reference to a specific time period, was deemed too indefinite

to be ascertainable. Id. at 25. Given the complexity of the transactions

and the active secondary market for the interests in question, the

proffered criteria were not sufficiently definite. Id. The Brecher class

5 The district court misread Brecher when it cited that case for the proposition that administrative feasibility “necessarily entails some evaluation, beyond just the class definition, of whether there is a real-world mechanism for identifying absent class members.” See J.A. 9 n.5. In fact, such considerations “played no role in the [Brecher] court’s decision, which instead turned on the principle that a class definition must be objective and definite.” Briseno, 844 F.3d at 1127 n.6.

41

definition was similar to a hypothetical class “defined as ‘those wearing

blue shirts,’” which would clearly be unascertainable because of the

absence of a “limitation on time or context” as well as its “ever-

changing composition.” Id. Unlike that unstable class definition,

Lowe’s proposed class is properly demarcated: it is limited by the

immutable characteristic of having purchased a specific physical

product within a specific time period. Unlike the participants in the

fluid and complex transactions at issue in Brecher, or the amorphous

hypothetical class of blue-shirt wearers, Lowe’s class is a finite and

ascertainable group of people who have all purchased Ames Meat’s

deceptive product. Thus, under the proper view of ascertainability as a

requirement that a class be defined in reference to objective criteria,

Lowe’s proposed class is ascertainable, and the lower court’s denial of

certification should be reversed because it applied the wrong legal

standard.

C. A narrow reading of ascertainability best serves the policy preferences embedded in Rule 23.

A narrow reading of ascertainability better achieves the policy

choices Congress enacted, while a broad reading would be harmful to

society and produce outcomes contrary to congressional intent. Thus,

the fears motivating the district court’s denial of certification are

misguided, and the standard it imposed creates serious and avoidable

policy problems. This Court should reject such a standard.

42

1. A narrow reading of ascertainability best serves Rule 23’s purposes.

By permitting aggregate litigation, Rule 23 serves at least two

purposes: First, it promotes administrative efficiency in federal courts.

Am. Pipe & Const. Co. v. Utah, 414 U.S. 538, 553 (1974)

(characterizing “efficiency and economy of litigation” as “a principal

purpose of the [class action] procedure”). Second, it overcomes the

critical procedural hurdle that “small recoveries do not provide the

incentive for any individual to bring a solo action prosecuting his or

her rights.” Amchem, 521 U.S. at 617. The narrow view of

ascertainability best achieves these purposes.

a) A narrow ascertainability requirement promotes efficiency.

First, the traditional approach to ascertainability weeds out

unwieldy classes. By requiring that classes “be defined clearly,”

Mullins, 795 F.3d at 659, narrow ascertainability filters vague,

subjective, and amorphous classes that raise manageability concerns

for federal courts. After all, “a court needs to be able to identify who

will receive notice, who will share in any recovery, and who will be

bound by a judgment.” Id. at 660. Vague classes — like that of “all

bald people” — fail because a judge may not know how to define

“baldness.” Subjective classes — like “people who felt discouraged

from applying for government energy assistance” — fail because a

court could never know who was or was not discouraged. See Simer v.

43

Rios, 661 F.2d 655, 669–70 (7th Cir. 1981). Amorphous classes fail

because “the ever-changing composition of the membership” makes the

identity of class members indeterminable. See Brecher, 806 F.3d at 25.

Hence, a minimally clear definition is crucial — without it, no amount

of administrative effort at any stage will conclusively determine

whether some individuals fit into a class. By focusing on objective

definition, the traditional approach draws precisely the right line.

Second, the narrow ascertainability standard draws that line

without sacrificing the economies of scale inherent in the class action

mechanism. Federal class actions are “designed to avoid, rather than

encourage, unnecessary filing of repetitious papers and motions.” Am.

Pipe, 414 U.S. at 540. Simply put, Congress decided it is more efficient

to process a single class action than many individual actions. But

heightened ascertainability forfeits this benefit in cases that are

otherwise valid but fail to meet its demanding standard — cases like

Willa Lowe’s.

b) A narrow ascertainability requirement preserves the benefits of compensation and deterrence that flow from the federal class action mechanism.

A narrow ascertainability requirement removes procedural

hurdles to litigation, better achieving deterrence and facilitating access

to compensation. Due to the high costs of litigation, often the “realistic

alternative to a class action is not 17 million individual suits, but zero

44

individual suits.” See Carnegie v. Household Int’l, Inc., 376 F.3d 656,

661 (7th Cir. 2004) (Posner, J.). This collective action problem is

especially acute for plaintiffs dispersed throughout the country. See

William B. Rubenstein, Why Enable Litigation?: A Positive

Externalities Theory of the Small Claims Class Action, 74 UMKC L.

Rev. 709, 713 (2006). Here, allowing Lowe’s case to proceed as a class

in federal court solves that problem and provides a vehicle for

vindicating the compensatory and deterrent rationales of statutes like

the ADTPA, just as Congress intended. Narrow ascertainability clears

the path for that process.

Further, narrow ascertainability preserves the compensatory

and deterrent benefits of the federal class action mechanism by

removing vague and subjectively defined classes. Vague classes

undercut compensation because potential members are hard-pressed to

know if they are included, potentially forfeiting recovery that is rightly

theirs. Cf. In re Fosamax Prods. Liab. Litig., 248 F.R.D. 389, 395–96

(S.D.N.Y. 2008) (noting that potential class members need not be

individually identified but that a clear class definition is vital “so that

they may decide whether to exercise their right to opt out of the class”).

Subjective class definitions leave class membership “solely to

[members’] own desires and interests.” Rubenstein, Newberg, supra,

§ 3:5. As a result, subjectively defined classes are overly deterrent:

45

potential defendants may forgo perfectly legal opportunities for fear of

harming people they cannot hope to identify. In short, narrow

ascertainability promotes compensation and deterrence by rooting out

vague and subjective classes.

2. The concerns animating the district court’s heightened ascertainability requirement are unfounded.

a) The narrow ascertainability standard sufficiently protects class action plaintiffs from having their claims diluted.

The Carrera court justified its stringent standard by asserting:

“It is unfair to absent class members if there is a significant likelihood

their recovery will be diluted by fraudulent or inaccurate claims.” 727

F.3d at 310. This worry is simply unfounded. In practice, there is no

“significant likelihood” of dilution of bona fide claims. In consumer

class actions, “the risk of dilution based on fraudulent or mistaken

claims seems low, perhaps to the point of being negligible.” Mullins,

795 F.3d at 667 (citing studies that found class participation rates

ranged from 10–15%, leaving the vast majority of funds unclaimed).

Thus, the fear of dilution is baseless and cannot be the foundation for

imposing a heightened ascertainability standard. Paradoxically, this

approach prevents any recovery due to fears that some class members

may recover too little.

46

b) Heightened ascertainability is unnecessary to protect a defendant’s due process rights.

A defendant has no due process right to challenge the identity of

absent class members before the damages phase of trial. Courts have

discretion to certify the class for the limited purpose of “determining

liability on a class-wide basis, with separate hearings to determine —

if liability is established — the damages of individual class members.”

Butler v. Sears, Roebuck & Co., 727 F.3d 796, 800 (7th Cir. 2013)

(Posner, J.). Rule 23(c)(4) specifically contemplates such a division —

it enables courts to certify classes for “particular issues,” Fed. R. Civ.

P. 23(c)(4), like liability, before proceeding to damages-specific

questions like proof of harm. Lowe bears the burden of demonstrating

compliance with Rule 23 for certification. See Wal-Mart Stores, Inc. v.

Dukes, 564 U.S. 338, 350 (2011). Further, Lowe must prove each

element of her claim at trial. See id. at 351 n.6. Given these

protections, due process does not require that defendants be able to

individually challenge the claims of absent class members at

certification.

Further, in cases involving aggregate damages, a defendant has

no interest in challenging individual claims for class membership even

at the damages phase. In cases like this one, where aggregate liability

47

may be asserted,6 the “identity of particular class members does not

implicate the defendant’s due process interest at all” because the

“addition or subtraction of individual class members affects neither the

defendant’s liability nor the total amount of damages it owes the

class.” Mullins, 795 F.3d at 670. Simply put, “a defendant has no

interest in how the class members apportion and distribute [the

damage award] among themselves.” Allapattah Servs., Inc. v. Exxon

Corp., 333 F.3d 1248, 1258 (11th Cir. 2003), aff’d, 545 U.S. 546 (2005).

A defendant’s interest is in its total liability. But liability is a question

for trial, where Ames Meat will have a full and fair opportunity to

challenge each element of Lowe’s claim. Thus, due process does not

require courts to smuggle damages questions into the class

certification inquiry.

c) Heightened ascertainability is not necessary to make class actions manageable.

Saving challenges to individual claims of class membership for

the damages phase will not make this case unmanageable. As an

initial matter, manageability is but one part of one element of the

certification decision. See Fed. R. Civ. P. 23(b)(3). As such, there is a

well-settled presumption that courts rarely fail to certify a class on the

sole ground that it would be unmanageable. See In re Visa

6 Willa Lowe’s theory of damages was sufficient to survive a motion to dismiss, J.A. 4, and the statute provides multiple ways of calculating damages, J.A. 16. All of these remain available to her.

48

Check/MasterMoney Antitrust Litig., 280 F.3d 124, 141 (2d Cir. 2001)

(Sotomayor, J.); see also Briseno, 844 F.3d at 1128; Mullins, 795 F.3d

at 663.

Further, courts have many options at their disposal to make

cases like this one more manageable. See In re Visa Check, 280 F.3d at

140. In addition to bifurcating the liability and damages phases of

trials, courts may (1) appoint a special master to preside over

individual damages proceedings; (2) decertify the class after the

liability trial and provide notice to class members concerning how they

may proceed to prove damages; (3) create subclasses; or (4) alter or

amend the class. See id. Compared to individual suits, these

mechanisms make even the most burdensome cases efficient — often

complex class actions will still be preferable to hundreds of separate

actions. The district court’s heightened ascertainability standard is

simply not necessary in this context. Courts have ample resources to

manage classes like Willa Lowe’s.

d) Mistrust of affidavits does not justify a heightened ascertainability standard.

Affidavits are a widely accepted claims-management tool. In an

individual trial, a plaintiff can use an affidavit to force a liability

determination without offending the Due Process Clause. See Briseno,

844 F.3d at 1132. So too for class actions:

[I]f such consumer testimony would be sufficient to establish injury in an individual suit, it follows that

49

similar testimony in the form of an affidavit or declaration would be sufficient in a class action. There cannot be a more stringent burden of proof in class actions than in individual actions.

In re Nexium Antitrust Litig., 777 F.3d 9, 20 (1st Cir. 2015). Even in

jurisdictions that, like Ames, look to administrative feasibility as part

of ascertainability, affidavits have been recognized as “an acceptable

methodology for establishing class membership.” In re Dial Complete

Mktg. & Sales Practices Litig., 312 F.R.D. 36, 50 (D.N.H. 2015).

In fact, affidavits pervade the legal system. Under Rule

53(c)(1)(A), an affidavit alone can create a genuine issue of material

fact that would prevent summary judgment and force the case to the

liability phase. See Fed. R. Civ. P. 53(c)(1)(A). Affidavits may be used

to demonstrate that a warrant is not constitutionally invalid for lack of

particularity, see, e.g., United States v. Johnson, 690 F.3d 60, 64 (3d

Cir. 1982), or to show juror misconduct based on outside influence —

possibly leading to a new trial, see Fed. R. Civ. P. 59(a), (c). Further,

the penalty of perjury suffices to ensure the reliability of critical

government documents like voter registration forms or income tax

returns. See 26 U.S.C. § 6065 (2012); 52 U.S.C. § 20508(b)(2)(C)

(2012). Federal law classifies perjury as a felony, punishable by up to

five years in prison. See 18 U.S.C. § 1621 (2012). Given the pervasive

use of affidavits and the strictness of penalties associated with their

misuse, it is unclear why the district court regarded affidavits as a

50

suspect means of verifying the identities of absent class members.

There is no reason for a court to be especially skeptical of affidavits in

the class action context. Therefore, this Court should not impose an

ascertainability requirement that assumes citizens of Ames would risk

the penalties of perjury for the menial sum of $500.

3. The district court’s “objective verifiability” test within the ascertainability requirement creates a nearly insurmountable obstacle for dispersed plaintiffs.

a) Heightened ascertainability threatens the viability of consumer class actions.

Federal class actions with dispersed claimants and severe

informational asymmetries are an especially problematic context for

adding a heightened ascertainability standard. The Supreme Court

has acknowledged that the dominant policy underlying the class action

mechanism is to provide an incentive for groups of plaintiffs with small

claims to prosecute their rights. Amchem, 521 U.S. at 617. Consumer

class actions are a paradigmatic example. As the Ninth Circuit has

recognized, “[c]lass actions involving inexpensive consumer goods in

particular would likely fail at the outset if administrative feasibility

were a freestanding prerequisite to certification.” Briseno, 844 F.3d at

1128. The district court’s “objective verifiability” test would

automatically wipe out consumer class actions, where the procedural

mechanism is greatly needed.

51

The fate of these cases within the Third Circuit attests to this

danger. For instance, in Bello v. Beam Glob. Spirits & Wine, Inc., 2015

WL 3613723 (D.N.J. June 9, 2015), the plaintiff retained a professional

claims administration firm and proposed “three levels of claims

validation to reduce the likelihood that individuals who submit

fraudulent claims [would] be included in the class,” id. at *6, but was

nonetheless denied certification, id. at *15. Rule 23 was intended as a

procedural device that would make bringing small dollar claims easier,

not as a tool for making consumer class actions impossible. If

consumer class actions are to be eviscerated, the prerogative for doing

so properly rests with Congress. Cf. Amgen, 133 S. Ct. at 1202 (“We

have no warrant to encumber securities-fraud litigation by adopting an

atextual requirement . . . that Congress, despite its extensive

involvement in the securities field, has not sanctioned.”). Thus, this

Court should reject an approach that subverts the carefully calibrated

procedural devices Congress enacted.

b) Adopting a heightened ascertainability standard is also inappropriate in other class action contexts.

In securities class actions, demonstrating the objective

verifiability of individual class members at the class certification stage

is especially difficult, but judges allow the cases to proceed when the

class is objectively defined. See, e.g., Dunnigan v. Metro. Life Ins.

Co., 214 F.R.D. 125, 135 (S.D.N.Y. 2003) (“Class members need not be

52

ascertained prior to certification, but must be ascertainable at some

point in the case.”). In such cases, it would be unreasonable to require

plaintiffs to prove when all shares in the class were purchased or sold

at class certification. Instead, the time to prove membership and

damages is after discovery on the merits. See Carpenters Pension Tr.

Fund v. Barclays PLC, 310 F.R.D. 69, 99 (S.D.N.Y. 2015) (holding that

“plaintiffs are not required to demonstrate either loss causation or

damages for purposes of class certification”). Because searching

discovery related to damages is out of place at class certification, an

ascertainability requirement that requires demonstrating “objectively

verifiable” criteria beyond defining the outer contours of the class

definition is incompatible with the realities of securities class actions.

Further, tunnel vision on proving the objective verifiability of

plaintiffs at class certification is particularly unwise when damages

are calculated in the aggregate or based on market-wide data. In the

antitrust context, where damages are dispersed across entire markets,

there are many administratively feasible methods for proving damages

on a class-wide basis, even when “individualized issues (rather than

common issues) were to predominate the damage inquiry.” In re

Urethane Antitrust Litig., 237 F.R.D. 440, 452 (D. Kan. 2006). In that

case, “the more appropriate course of action would be to bifurcate a

53

damages phase and/or decertify the class as to individualized damages

determinations.” Id.

Lastly, an ascertainability inquiry that limits classes to

objectively verifiable members could harm defendants who seek a

broad class definition to purchase “global peace,” Rubenstein, Newberg,

supra, § 9:50, and undermine the purposes of finality underlying Rule

23. Simply put, a heightened ascertainability requirement can

incentivize plaintiffs to bring narrower classes. But defendants facing

potentially massive liability spanning entire markets in securities,

antitrust, and consumer class actions may actually prefer “the broadest

class possible” in order to consolidate various types of cases into a

single proceeding or to purchase a settlement with a greater preclusive

effect. Michael D. Torpey et al., Securities Litigation: Planning and

Strategies — Defending Securities Claims (ALI-ABA Course of Study,

May 1–2, 2008), WL SN084 ALI-ABA 691, 791. Thus, even though

traditional ascertainability might be inconvenient for Ames Meat here,

other defendants may be adversely affected by a heightened

ascertainability standard that can discourage the certification of

broadly defined classes.

c) Heightened ascertainability improperly puts the burden on consumers to anticipate corporate wrongdoing.

Prerequisites to class certification should not penalize plaintiffs

to the benefit of defendants accused of fraud. Denying class

54

certification in this case imposes a penalty on Lowe and her fellow

class members who transact in cash and rarely keep receipts for low-

cost food items like Meaties. See J.A. 8, 29. That said, in terms of

objective verifiability, Lowe, and many like her, will present easy

cases. She has eaten Meaties since childhood, buys them on her

regular visits to Ames, and even knows the “all meat treat” slogan by

heart. J.A. 28. She can presumably collect affidavits from friends,

family, and local merchants if needed, and few would risk a perjury

prosecution in the hopes of obtaining a $500 judgment. Further, many

will have credit card data linking them to businesses in Ames that sell

the mislabeled Meaties. But in most cases, unscrupulous companies

know customers will not keep receipts. So under the regime proposed

by Ames Meat and accepted by the district court, J.A. 8, defendants

could skirt liability simply by maintaining lax sales records.

Heightened ascertainability therefore penalizes consumers for not

anticipating the fraudulent activity of companies. And, ironically, the

less scrupulous a company is in maintaining records, the more it

evades liability. Thus, the district court’s approach puts the fox in

charge of the proverbial henhouse.

Lowe should not be expected to demonstrate the verifiability of

class members before she has received discovery on the merits —

indeed, many have yet to learn that Ames Meat has lied to them.

55

Further, the credibility of a class member’s affidavit testimony cannot

be judged before it is even heard. And to apply a heightened standard

here would reward Ames Meat for its own misrepresentations and lax

record-keeping. Because the district court abused its discretion by

departing from the text of Rule 23, the weight of authority, and

Congress’s policy choices, this Court should reverse the judgment

below.

CONCLUSION

For the foregoing reasons, Plaintiff-Appellant requests that this

Court reverse the district court’s denial of class certification and

remand for further proceedings.

February 20, 2017 Respectfully submitted,

The John Hart Ely Memorial Team ______________________________ David Beylik

______________________________ Jason Ethridge

______________________________ Jenya Godina

______________________________ Isaac Park ______________________________

David Phillips

______________________________ Derek Reinbold

A1

APPENDIX

18 U.S.C. § 1621 (2012) § 1621. Perjury generally Whoever—

(1) having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true; or

(2) in any declaration, certificate, verification, or

statement under penalty of perjury as permitted under section 1746 of title 28, United States Code, willfully subscribes as true any material matter which he does not believe to be true; is guilty of perjury and shall, except as otherwise expressly

provided by law, be fined under this title or imprisoned not more than five years, or both. This section is applicable whether the statement or subscription is made within or without the United States.

A2

26 U.S.C. § 6065 (2012)

§ 6065. Verification of returns Except as otherwise provided by the Secretary, any return,

declaration, statement, or other document required to be made under any provision of the internal revenue laws or regulations shall contain or be verified by a written declaration that it is made under the penalties of perjury.

A3

28 U.S.C. § 1332(d) (2012)

§ 1332(d). Class Action Fairness Act. (d)

(1) In this subsection—

(A) the term “class” means all of the class members in a class action;

(B) the term “class action” means any civil action filed under rule 23 of the Federal Rules of Civil Procedure or similar State statute or rule of judicial procedure authorizing an action to be brought by 1 or more representative persons as a class action;

(C) the term “class certification order” means an order issued by a court approving the treatment of some or all aspects of a civil action as a class action; and

(D) the term “class members” means the persons (named or unnamed) who fall within the definition of the proposed or certified class in a class action.

(2) The district courts shall have original jurisdiction of

any civil action in which the matter in controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs, and is a class action in which—

(A) any member of a class of plaintiffs is a citizen of

a State different from any defendant; (B) any member of a class of plaintiffs is a foreign

state or a citizen or subject of a foreign state and any defendant is a citizen of a State; or

(C) any member of a class of plaintiffs is a citizen of a State and any defendant is a foreign state or a citizen or subject of a foreign state.

. . . .

A4

28 U.S.C. § 2072 (2012) § 2072. Rules of procedure and evidence; power to

prescribe (a) The Supreme Court shall have the power to prescribe general

rules of practice and procedure and rules of evidence for cases in the United States district courts (including proceedings before magistrate judges thereof) and courts of appeals.

(b) Such rules shall not abridge, enlarge or modify any

substantive right. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.

A5

52 U.S.C. § 20508(b)(2)(C) (2012)

§ 20508. Federal coordination and regulations . . . . (b) Contents of mail voter registration form The mail voter registration form developed under subsection

(a)(2)— . . . . (2) shall include a statement that— (A) specifies each eligibility requirement (including citizenship); (B) contains an attestation that the applicant meets each such

requirement; and (C) requires the signature of the applicant, under penalty of

perjury;

A6

Fed. R. Civ. P. 23

Rule 23. Class Actions (a) Prerequisites. One or more members of a class may sue or

be sued as representative parties on behalf of all members only if: (1) the class is so numerous that joinder of all members is

impracticable;

(2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are

typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect

the interests of the class.

(b) Types of Class Actions. A class action may be maintained if Rule 23(a) is satisfied and if:

. . . . (3) the court finds that the questions of law or fact common to

class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include:

. . . . (D) the likely difficulties in managing a class action. (c) Certification Order; Notice to Class Members;

Judgment; Issues Classes; Subclasses. (1) Certification Order.

(A) Time to Issue. At an early practicable time after a person sues

or is sued as a class representative, the court must determine by order whether to certify the action as a class action.

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(B) Defining the Class; Appointing Class Counsel. An order that certifies a class action must define the class and the class claims, issues, or defenses, and must appoint class counsel under Rule 23(g).

(C) Altering or Amending the Order. An order that grants or denies class certification may be altered or amended before final judgment.

(2) Notice. . . . . (B) For (b)(3) Classes. For any class certified under Rule

23(b)(3), the court must direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice must clearly and concisely state in plain, easily understood language:

. . . .

(v) that the court will exclude from the class any member who requests exclusion;

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Fed. R. Civ. P. 53

Rule 53. Masters (c) Master's Authority. (1) In General. Unless the appointing order directs otherwise, a

master may: (A) regulate all proceedings;

(B) take all appropriate measures to perform the assigned duties

fairly and efficiently; and (C) if conducting an evidentiary hearing, exercise the appointing

court's power to compel, take, and record evidence.

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Fed. R. Civ. P. 59

Rule 59. New Trial; Altering or Amending a Judgment (a) In General.

(1) Grounds for New Trial. The court may, on motion, grant a new trial on all or some of the issues — and to any party — as follows:

(A) after a jury trial, for any reason for which a new trial has

heretofore been granted in an action at law in federal court; or

(B) after a nonjury trial, for any reason for which a rehearing

has heretofore been granted in a suit in equity in federal court.

(2) Further Action After a Nonjury Trial. After a nonjury trial,

the court may, on motion for a new trial, open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new ones, and direct the entry of a new judgment.

. . . .

(c) Time to Serve Affidavits. When a motion for a new trial is based on affidavits, they must be filed with the motion. The opposing party has 14 days after being served to file opposing affidavits. The court may permit reply affidavits.

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N.Y. C.P.L.R. § 901

§ 901. Prerequisites to a class action . . . . b. Unless a statute creating or imposing a penalty, or a

minimum measure of recovery specifically authorizes the recovery thereof in a class action, an action to recover a penalty, or minimum measure of recovery created or imposed by statute may not be maintained as a class action.

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Ames Deceptive Trade Practices Act, Ames Revised Statutes §§

1001 et. seq. . . . . § 1001.2. Legislative Intent. The Ames General Assembly finds that it is in the best interest

of the people of this State to have a strong and effective consumer protection law in order to protect both the consuming public and honest businesses. The General Assembly further finds that the Ames Deceptive Trade Practices Act set forth herein, which grants the Attorney General authority to enforce its provisions and provides an individual private right of action in favor of consumers injured by deceptive and dishonest trade practices, will advance these goals and further the public health, welfare, and interest. It is the intent of the General Assembly that the Ames Deceptive Trade Practices Act be broadly construed to effect the goals embodied herein of effective consumer protection.

. . . . § 1001.4. Enforcement. (a) The office of the Attorney General and the district attorneys

shall have the following functions, powers, and duties: (1) Conduct preliminary investigations to determine the merit of

complaints. (2) Receive information and documentary material from

complainants and take whatever action is appropriate in connection therewith as authorized by this chapter. The office of the Attorney General and the district attorneys may otherwise receive and investigate complaints with respect to acts or practices declared to be unlawful by this chapter, and inform the complainants with respect thereto.

(3) Institute legal proceedings or take such other actions provided for herein which are necessary or incidental to the exercise of its powers and functions.

(b) Each department, agency, officer, or employee of the state

shall cooperate with and assist the office of the Attorney General or a district attorney in the performance of its functions, powers, and

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duties. When a complaint is referred by the office of the Attorney General or a district attorney to a department, agency, officer, or employee of the state or a county, such entity shall, upon final disposition of the complaint, make a final report in writing to the office of the Attorney General or a district attorney describing the action taken and the final results of that action.

(c) Nothing contained in this chapter shall be deemed to

delegate or detract in any way from the functions, powers, and duties prescribed by law for any other department or agency of the state, nor to interrupt or preclude the direct relationships of any such department or agency or units of county government in the performance of such functions, powers and duties, nor shall good faith compliance with any federal or state law or regulation be a violation of this chapter with respect to that specific act of compliance.

. . . . § 1001.8. Restraining Orders.

(a) Whenever the office of the Attorney General or the office of the district attorney has reason to believe that any person is engaging in, has engaged in or is about to engage in any act or practice declared to be unlawful by this chapter, the Attorney General or the district attorney may bring an action in the name of the state against such person to restrain by temporary restraining order, temporary or permanent injunction such acts or practices. However, unless the Attorney General or district attorney determines that a person subject to the provisions of this chapter designs quickly to depart from this state or to remove his property therefrom, or to conceal himself or his property therein, or to continue practices unlawful under this chapter, he shall, before initiating any legal proceedings is contemplated, allow such person a reasonable opportunity to appear before the Attorney General or district attorney and solve the dispute to the parties’ satisfaction.

(b) The court may appoint a master or receiver or order

sequestration of assets whenever it shall appear that the defendant threatens or is about to remove, conceal, or dispose of his property to the damage of persons to whom restoration would be made, or whenever a person who has been ordered to make restitution under this section has failed to do so within three months after the order to make restitution has become

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final and nonappealable, and assess the expenses of the master or receiver against the defendant.

(c) Upon a showing to the court by the office of the Attorney

General or the office of the district attorney that a person has engaged in continuous and willful violations of the provisions of this chapter, the court may suspend or revoke any license or certificate authorizing that person to engage in business in this state or the court may enjoin any person from engaging in business in this state.

(d) The penalties authorized under this section shall not apply to any person who shows by a preponderance of evidence that he had established reasonable procedures to comply with the provisions of this chapter.

(e) The court may grant such other appropriate relief as the court may determine. § 1001.9. Private Right of Action. (a) Any person who commits one or more of the acts or practices

declared unlawful under this chapter and thereby causes monetary damage to a consumer shall be liable to each consumer for:

(1) Any actual damages sustained by such consumer or person, or

the sum of $500, whichever is greater; or

(2) Up to three times any actual damages, in the court’s discretion. In making its determination under this subsection, the court shall consider, among other relevant factors, the amount of actual damages awarded, the frequency of the unlawful acts or practices, the number of persons adversely affected thereby, and the extent to which the unlawful acts or practices were committed intentionally; (b) A consumer or other person bringing an action under this

chapter may not bring an action on behalf of a class. (c) The office of the Attorney General or district attorney shall

have the authority to bring an action in a representative capacity on behalf of any named person or persons. In any such action brought by the office of the Attorney General or a district attorney, the court shall

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not award minimum damages or treble damages, but recovery shall be limited to actual damages suffered by the person or persons, plus reasonable costs and attorneys’ fees.