Cherry v. Dometic Corp. settled the circuit split in plaintiffs' favor, but ascertainability is far from a solved problem in the Eleventh Circuit — the doctrine's residual relevance under Rule 23(b)(3) manageability creates continuing exposure that practitioners must account for.
Doctrinal Framing
Ascertainability — the requirement that a class be defined with sufficient clarity to permit identification of its members — is nowhere mentioned in the text of Fed. R. Civ. P. 23. Courts have implied it from the rule's overall logic: a court cannot certify a class, provide notice, bind absent members, or administer a judgment if it cannot determine who is in the class. The controversy has never been about that basic requirement. The controversy has been about a second, more demanding layer that some courts grafted onto it — the "heightened ascertainability" or "administrative feasibility" requirement — under which plaintiffs must prove, as a prerequisite to certification, that a reliable, administratively workable method exists to identify class members. The Eleventh Circuit's 2021 decision in Cherry v. Dometic Corp. definitively rejected that second layer in this circuit.
Cherry v. Dometic Corp., 986 F.3d 1296 (11th Cir. 2021)
In Cherry v. Dometic Corp., 986 F.3d 1296 (11th Cir. 2021), the Eleventh Circuit vacated a district court's denial of class certification in a consumer case involving allegedly defective RV refrigerators. The district court had denied certification because plaintiffs failed to demonstrate an "administratively feasible" method of identifying class members — tracking language from certain pre-Cherry unpublished Eleventh Circuit decisions that had applied the Third Circuit's heightened standard.
Chief Judge William Pryor, writing for a unanimous panel, held that proof of administrative feasibility is not a prerequisite to class certification under Rule 23. The court's analysis rested on three pillars:
Text. Neither Rule 23(a) nor Rule 23(b) mentions administrative feasibility. The implied ascertainability requirement, to the extent it exists, requires only that a class be "adequately defined such that its membership is capable of determination." Something is ascertainable if it is "capable of being determined," not if it is capable of convenient or costless determination.
Structure. Rule 23(a) requirements are threshold prerequisites, each of which must be met. Rule 23(b)(3), by contrast, requires a balancing inquiry — whether a class action is the superior method — and manageability is one factor in that balance. District courts cannot transform a balancing factor into an absolute threshold requirement.
Precedent. The court expressly disavowed earlier unpublished decisions that had borrowed the Third Circuit's administrative feasibility test, and aligned itself with the Second, Sixth, Seventh, Eighth, and Ninth Circuits — the majority position.
The court's disposition left intact one important qualification: while administrative feasibility is not a threshold requirement, it remains "relevant" to the manageability analysis under Rule 23(b)(3)(D), which directs courts to consider "the likely difficulties in managing a class action." On remand, the district court must weigh administrative feasibility in the superiority/manageability calculus, but cannot simply deny certification because plaintiffs have not proven feasibility at the outset.
The Third Circuit Heightened Standard: Marcus and Carrera
The circuit split that Cherry resolved — at least as to the Eleventh Circuit — originated in the Third Circuit. In Marcus v. BMW of North America, LLC, 687 F.3d 583 (3d Cir. 2012), the Third Circuit held that plaintiffs must demonstrate "a reliable and administratively feasible" mechanism for identifying class members as a prerequisite to certification. Two years later, Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013), extended this requirement to consumer class actions where class members are identifiable only through self-identification affidavits, finding that affidavits alone were insufficient.
The Third Circuit's rationale is formalist and defendant-protective: without a reliable, pre-certification identification method, defendants face unverifiable class rosters, cannot ensure that only class members benefit from a settlement, and are exposed to disproportionate liability based on procedurally questionable membership determinations. The Third Circuit has repeatedly reaffirmed these requirements, most recently in pharmaceutical antitrust class actions where it insisted that determining class membership cannot require "mini-trials."
The First and Fourth Circuits have adopted versions of the Third Circuit's heightened standard. The practical consequence for plaintiffs in those circuits is that consumer class actions involving retail products — where manufacturer records rarely identify end purchasers — are extremely difficult to certify. Self-identification by affidavit, the traditional fallback, will not satisfy the Third Circuit's administrative feasibility test.
Practical Implications: FL/AL Federal Courts
For plaintiffs' counsel litigating class actions in federal court within Florida and Alabama, Cherry is directly controlling and produces several specific consequences.
What "Adequately Defined" Means After Cherry
A class is adequately defined if the definition relies on objective criteria — product model, date range, geographic area, transaction type — such that a court could "ascertain" membership without making individual merits determinations. The inquiry is: can a person determine whether they are in the class by applying the class definition? If yes, the class is ascertainable under Cherry. The court need not evaluate how burdensome that determination would be.
Practitioners should accordingly draft class definitions using criteria traceable to identifiable records: manufacturer sales data, warranty registration records, motor vehicle records, insurance claims data, retail point-of-sale databases, utility billing records. Even where defendants control those records and may resist producing them, the definitional capability — the class membership's theoretical determinability — satisfies the Cherry ascertainability standard at the certification stage.
Administrative Feasibility Survives in the Rule 23(b)(3) Manageability Analysis
Cherry's most important nuance for plaintiffs' practice is the court's preservation of administrative feasibility as a balancing factor under Rule 23(b)(3)(D). A district court that acknowledges Cherry but then denies certification on the ground that managing class membership identification would be so difficult that a class action is not the superior method is technically compliant with Cherry. Plaintiffs must therefore be prepared to address manageability in their certification briefs — and to distinguish administrative complexity from infeasibility. The existence of management difficulties does not defeat superiority; the question is whether those difficulties outweigh the advantages of class treatment.
Self-Identification Affidavits and Notice
In small-dollar consumer class actions where retailer records do not identify individual purchasers, plaintiffs routinely propose self-identification through declaration or claim form. After Cherry, that proposal does not fail the ascertainability test; it does, however, create potential notice problems. A class whose members cannot be identified in advance of settlement may not satisfy Rule 23's "best notice practicable" standard for individual notification, shifting the question to whether publication notice is adequate. Plaintiffs should plan that analysis at the certification stage rather than addressing it for the first time at settlement approval.
Distinguishing the Fourth Circuit (if Venue Is Available)
Plaintiffs with claims that span Alabama or Florida and one or more states in the Fourth Circuit's geographic footprint should evaluate venue carefully. The Fourth Circuit's heightened ascertainability standard — applicable in the Carolinas, Virginia, Maryland, and West Virginia — would create greater exposure for consumer claims with diffuse purchaser populations. Plaintiffs who have a genuine choice of venue will generally prefer the Eleventh Circuit's more permissive standard.
Subclasses and Post-Cherry Ascertainability Litigation
Cherry itself resolved only the threshold question. Post-Cherry litigation in the Eleventh Circuit has addressed the standard as applied to proposed subclasses. Courts have held that the Cherry "adequately defined" standard applies to each proposed subclass individually — a class definition that creates facially identifiable primary class members but produces vague or individually determined subclasses can still fail ascertainability as to the subcategory, even if not as to the class as a whole.
This creates a practical trap for plaintiffs who define subclasses based on individualized variables — product malfunction severity, geographic proximity to a contamination source, date-of-purchase brackets — without a corresponding evidentiary record that the distinction is administratively traceable. Courts applying Cherry post-remand have found some proposed subclasses adequately defined precisely because the distinction tracks defendant's own categorization system.
Open Questions
Cherry resolved the threshold ascertainability question but left open several doctrinal questions. First, the opinion notes that the court is rejecting administrative feasibility as "a precondition for certification" — it does not address whether administrative infeasibility can defeat certification even when plaintiffs satisfy Rule 23(b)(3)(D) with evidence that feasibility, while difficult, is achievable through case management tools. Second, Cherry addressed only Rule 23(b)(3) damages classes; it did not speak to Rule 23(b)(2) injunctive classes or Rule 23(c)(4) issue classes, where the ascertainability analysis may differ. Third, the Supreme Court has not addressed the circuit split, and despite repeated certiorari petitions — from both plaintiff and defense bar — resolution remains uncertain.
Closing
For practitioners in Florida and Alabama federal courts, Cherry clears an obstacle that had begun to infect district court practice through non-precedential Eleventh Circuit decisions borrowing the Third Circuit test. The residual manageability analysis remains the defense's tool for raising similar arguments through a different procedural lens. Plaintiffs who can demonstrate that identification, while complex, is objectively achievable based on available records — and that the class action mechanism provides superior resolution of common issues — should be able to overcome manageability objections as well.
Talk to Yates Anderson
If you are litigating a matter in this area — or weighing whether to — the working analysis above only goes so far. Request a case evaluation and a Yates Anderson attorney will respond within one business day.
Informational only. Not legal advice. No attorney-client relationship is created by reading this post. Consult a licensed attorney in your jurisdiction.