We previously reported on the Seventh Circuit’s decision in Mullins v. Direct Digital, LLC, in which the Court systematically refuted every policy argument made to support holdings like the Third Circuit’s opinion in Carrera, requiring a plaintiff to demonstrate that class members can be identified through a reliable and administratively feasible manner in order to meet the implied ascertainability requirement for class certification.
Since our last post, Direct Digital has petitioned the ruling to the Supreme Court, and the opposition to the request is due to be filed no later than December 28, 2015. Moreover, the Sixth Circuit followed the opinion in Mullins, exacerbating the divide between the circuits on the shadow ascertainability requirement.
Though the Seventh Circuit opinion is one of the most thorough challenges to Carrera, critics have identified several logical flaws and missteps in the Court’s opinion. For an in-depth analysis of the problems with the Court’s ruling, please see the recent article “Seventh Circuit’s Ascertainability Decision Deprives Class-Action Plaintiffs and Defendants of Due-Process Protections,” published by the Washington Legal Foundation.
We will continue to monitor this important opinion and the reactions to it across the country and provide further updates.