Class ascertainability.

• Author: Shaw, Geoffrey C.
• Position: II. Definitional Malfunctions: Subjectivity, Vagueness, and Scope through Conclusion, with footnotes, p. 2378-2404

2. DEFINITIONAL MALFUNCTIONS: SUBJECTIVITY, VAGUENESS, AND SCOPE

   Beyond the considerations of notice, remedies, and res judicata discussed in Part I, courts and commentators worry that there is something wrong with subjective or vague classes and classes with problematic scope-whether "overbroad" or "failsafe"-and suggest that the ascertainability requirement answers these concerns. In this Part, I argue that using the ascertainability requirement to address these class malfunctions is both confusing and unnecessary.

   1. Subjectivity and Vagueness

      A central worry underlying ascertainability doctrine is that there is something wrong with vagueness or subjectivity in class definition, and that the ascertainability requirement roots out vague and subjective classes. But concerns about subjectivity and vagueness do not justify an implicit ascertainability requirement. To see why, we need to observe that there are two kinds of subjectivity and two kinds of vagueness at stake in ascertainability cases-an ontological and an epistemic version of each-that merit different treatment. (105)

      1. Subjective Classes

         Consider two different ways in which a class can be "subjective." First, the class definition can build in inherently subjective factors. Here, a person's membership in the class is a function of his or her own mental states. (106) Imagine the class of people "who were offended" or "deceived" by an advertising campaign. (107) This type of subjectivity arose when a district court refused to certify the class of "all individuals who consumed [D]iet Coke from the fountain, deceived by the marketing practices employed by Coca-Cola Company into believing that fountain [D]iet Coke does not contain saccharin." (108) Class definitions that incorporate states of mind can be dealt with in several ways, none of which requires an ascertainability requirement. First, in most cases, these subjective definitions violate the minimally clear definition requirement because they present classically vague predicates. What it means to be "offended" or "deceived" simply is not clear. Also, perhaps because ontologically subjective classes fail to establish a minimally clear definition, these classes will often fall short on Rule 23(a)'s explicit requirements. For instance, one concern with a class of people who were "offended" by a statement (assuming that there is a cause of action that makes such a class definition relevant) is not that there is something the matter with awarding liability for offendedness per se; it is that being offended or deceived means different things for different people. Precisely because being offended is subjective, it varies. So a class of offended or deceived people could have a hard time proving commonality. (109) By the same token, it would be hard for the named plaintiffs to demonstrate that they were offended or deceived in the same way as the absent class members, which invites a typicality challenge. (110) Sometimes, courts have tackled ontologically subjective definitions under the heading of manageability. In Simer v. Rios, in 1981, the Court of Appeals for the Seventh Circuit considered a class of people "discouraged from applying for [financial] assistance because they were not delinquent in the payment of their fuel bills for 1979" (111) and asked "whether the issue of each individual plaintiff s state of mind makes the class action unmanageable." (112) The court turned to the "concept of manageability" (113) and found that "the issue of 'state of mind' [did make the] case difficult to manage as a class action." (114) The central point is simply that we do not need an implicit ascertainability requirement to block classes based on state of mind.

         The second form of subjectivity is different. Whether or not the definition builds in subjective factors, the proposed means of determining membership sometimes involve subjective evidence. This was the problem in Carrera. Whether one purchased a weight loss pill is an objective fact; the subjectivity arose because the court was asked to accept a potential class member's "say-so" as the criterion for membership. Carrera provides a nice reminder that this epistemic form of subjectivity and the ontological form of subjectivity are not tethered together. For example, one could use "say-so" to determine the membership of a class that would also be ascertainable from objective records: "Raise your hand if you subscribe to the Yale Law Journal." "Say-so" may be the most efficient way to identify classes with objective but elusive definitions: "Raise your hand if you read the Yale Law Journal." And, of course, "say-so" is often the only way to identify membership in classes with genuinely subjective definitions: "Raise your hand if you enjoy the Yale Law Journal." This epistemic form of subjectivity is not related to class definition: it is a problem of the difficulties of managing the litigation. As I explained in the discussion of remedies above, Rule 23's text explicitly empowers courts to take management difficulties into consideration at the certification stage and to ask, in light of those difficulties, whether the class action is a superior method of resolving the claims. While in many cases, relying on "say-so" may result in overwhelming difficulties relating to the provision of notice and the disbursement of damages, rising to the level of genuine unmanageability, in many cases it may not. In Part IV, I address how an analysis rooted in manageability and superiority works and explain its advantages. The point for now is that neither form of subjectivity calls for an implicit ascertainability requirement.

      2. Vague Classes

         Like we saw with "subjective" classes, there are actually two distinguishable problems being discussed under the label of vagueness, one ontological and one epistemic. First, some classes-the class of "bald people" or "young people--are inherently vague because the class definition builds in vague terms. The problem with these classes is that they lack a minimally clear definition, not that they are unascertainable. What, for instance, would we say about the class of bald purchasers of Rogaine, all armed with receipts, suing for false advertising? What would we say about the class of young people suing Safeway? Vaguer still, what would we say about the class of "slithy toves" who "gyre[d] and gimble[d] in the wabe"? (115) The problem with these classes is that even if the court had all the information in the world, and even if it performed numerous "mini-trials," there would still be unresolvable disputes about membership. The problem is with the conceptual discreteness of the category in question, not with the information needed to establish membership in that category. As a result, it would be inaccurate to say that the class of bald purchasers or young people is uncertifiable because of the administrative feasibility of establishing one's baldness or youth. Instead, it makes much more sense to say simply that the class lacks a minimally clear definition. (116) In fact, before ascertainability doctrine came into vogue, courts did just this. Take, for example, DeBremaecker v. Short, (117) a case from 1970 that is sometimes cited as an early precursor to ascertainability doctrine. (118) In DeBremaecker, the Court of Appeals for the Fifth Circuit blocked certification of a class defined as "residents of this State active in the 'peace movement.'" (119) In refusing to certify the class, the court pointed to the "uncertainty of the meaning of 'peace movement.'" (120) This class is probably not ascertainable by today's standards. How would a court determine whether a person was active in the peace movement without significant administrative expenditure or an appeal to overly subjective factors? But that is not the core problem. The core problem is that the terms used in the definition are inherently vague. In principle, no court, no matter how much information it received, could determine the full membership of the class.

         Other classes are vague in the sense that it is difficult to identify individual class members even though it is logically possible to do so. The class of "all bald people" is inherently vague because there are necessarily disputable cases of baldness. (121) But there may also be disputable cases of membership in the class of people who have fewer than a thousand hairs if the process of counting hairs is imperfect. While the class of "heavy smokers" is inherently vague, the class of people who "smoked Marlboro cigarettes for at least twenty pack-years"--a real class, dismissed on ascertainability grounds (122)--successfully delimits a discrete category. The potential vagueness lies in the difficulty of determining who fits the definition, not in the definition itself. Carrera fits into this category too: whether someone purchased a weight loss pill is not inherently vague; one's purchase is a fact in the world. The difficulty lies in information gathering. This epistemic form of vagueness is not a problem of class definition; it is a problem of the difficulties of managing the litigation. And here, Rule 23's text supplies directly relevant resources. As I explained in the discussion of remedies above, (123) the Rule's manageability and superiority provisions equip courts to evaluate likely information gathering difficulties and dismiss classes presenting overwhelming burdens. But while the ascertainability requirement does not offer much beyond throwing these classes out of court, regardless of whether the difficulties of identifying the class members would actually derail the litigation, analysis of manageability and superiority invites courts realistically to consider the likely difficulties and to make a better tailored certification decision. In Part IV, I explain how this analysis works and argue that it is superior to an ascertainability test. The point for now is that neither form of vagueness...