Mullins v. Direct Digital, LLC

Vince Mullins (plaintiff), a consumer and purchaser of Direct Digital, LLC’s (Direct Digital) (defendant) Instaflex Joint Support compound sought class certification in a federal district court for all consumers who purchased Instaflex within a specific period. Mullins alleged that Direct Digital fraudulently misrepresented that Instaflex relieved joint discomfort, and that Direct Digital’s label and marketing materials for Instaflex were fraudulent because they lacked scientific support and because the primary ingredient was the equivalent of a sugar pill. The district court found that the proposed class met the requirements under Federal Rule of Civil Procedure 23(a) and (b)(3) and certified the class. In so doing, the court rejected Direct Digital’s argument that the requirements of Rule 23(b)(3) should be tested by a heightened ascertainability requirement beyond the recognized general ascertainability requirement that a class be defined clearly and by reference to objective criteria. Specifically, Direct Digital argued that class certification should be denied if the plaintiff cannot show a reliable and administratively feasible way to determine whether a particular person is a member of the class—and that affidavits from putative class members are legally insufficient to meet this requirement. Direct Digital further argued that imposing a heightened ascertainability requirement would yield administrative convenience, protect absent class members, avoid diluting the value of valid claims from fraudulently filed claims, and protect a defendant’s due-process interests. Direct Digital appealed the district court’s certification of the class.