Jacob Zowie Thomas Rensel v. Centra Tech, Inc.

2 F.4th 1359

• Court: Court of Appeals for the Eleventh Circuit
• Decided: June 29, 2021
• Docket: 20-10894
• Status: Published

Opinion

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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 20-10894 ________________________

D.C. Docket No. 1:17-cv-24500-RNS

JACOB ZOWIE THOMAS RENSEL, individually and on behalf of all others similarly situated, WANG YUN HE, CHI HAO POON, KING FUNG POON, JAE J. LEE, MATEUSZ GANCZREK, RODNEY WARREN,

Plaintiffs - Appellants,

versus

CENTRA TECH, INC.,

Defendant - Appellee,

SOHRAB SHARMA, et al.,

Defendants. USCA11 Case: 20-10894 Date Filed: 06/29/2021 Page: 2 of 25

Appeal from the United States District Court for the Southern District of Florida ________________________

(June 29, 2021)

Before LAGOA, ANDERSON, and MARCUS, Circuit Judges.

MARCUS, Circuit Judge:

The plaintiffs in this putative securities fraud class action filed a motion for

class certification as early as they realistically could have, but the district court

denied it as untimely. The plaintiffs did not miss any rule-based or court-ordered

deadline for their class certification motion. Nor did their timing cause prejudice

to any party. The case calendar effectively deprived them of any opportunity to

conduct discovery in support of class certification. Under the circumstances of this

case, including the near omnipresence of an automatic discovery stay imposed by

the Private Securities Litigation Reform Act whenever a motion to dismiss is

pending -- in effect for just under fifteen of the eighteen months between the initial

complaint and the plaintiffs’ certification motion -- the district court’s timeliness

holding was an abuse of discretion.

The district court also erred when it denied certification on the alternative

ground that the plaintiffs had not established an administratively feasible method

for identifying class members. Rule 23 implicitly requires that a proposed class be

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ascertainable; that is, the class must be “adequately defined such that its

membership is capable of determination.” Cherry v. Dometic Corp., 986 F.3d

1296, 1304 (11th Cir. 2021). But our recent decision in Cherry clarified that to

meet this ascertainability requirement, the party seeking certification need not

establish its ability to identify class members in a convenient or administratively

feasible manner. Of course, considerations of administrative feasibility may still

be relevant to Rule 23(b)(3)(D) manageability analysis. Id.

We therefore vacate the district court’s order denying the plaintiffs’ motion

for class certification and remand for further proceedings.

I.

The real action in this appeal is found in its procedural history, but a bit of

substantive background is in order. Riding the recent wave of enthusiasm for

cryptocurrencies, Centra Tech, Inc. got off to a fast start. Centra Tech promised to

market the Centra Wallet, a digital wallet for storing different kinds of

cryptocurrencies, and the Centra Card, a Visa and Mastercard-backed debit card

that would allow users to make everyday purchases with cryptocurrencies. To

raise funds to develop these products, Centra Tech held an initial coin offering

(“ICO”) between July 2017 and April 2018. The ICO involved the sale of Centra

Tokens, which entitled the holder to certain rights related to Centra Tech -- in other

words, Centra Tokens were securities similar to the stock sold at an initial public

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offering. Centra Tech enlisted the promotional services of longtime world

championship boxer Floyd Mayweather Jr. and double-platinum-selling hip-hop

producer DJ Khaled to publicize the ICO to potential investors. Apparently

impressed, thousands of investors participated in the ICO to enable Centra Tech to

raise $32 million.

But Centra Tech’s fortunes -- and those of its investors -- soon crashed.

Centra Tech, it turned out, had not been truthful with the ICO purchasers. For one

thing, Visa and Mastercard had not actually signed on to support the Centra Card.

Nor were Centra Tech’s digital currency holdings insured, despite assurances

otherwise. Centra Tech also tried to boost its investor appeal by listing fake

executives. Centra Tech personnel even fabricated a LinkedIn profile for the

fictional “Michael Edwards,” who was supposedly a Harvard professor and Centra

Tech co-founder. Centra Tech’s real-life founders, Sohrab Sharma, Raymond

Trapani, and Robert Farkas pled guilty to criminal securities and wire fraud

charges in the Southern District of New York; the SEC also sued them for

securities fraud. See United States v. Sharma et al., No. 18-cr-340-LGS, ECF Nos.

152, 427, 470 (S.D.N.Y.); S.E.C. v. Sharma et al., No. 18-cv-2909-DLC, ECF

(S.D.N.Y.). The SEC action remains stayed pending final resolution of the

criminal case (Trapani, who cooperated with the government, has not yet been

sentenced).

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ICO investor Jacob Rensel filed the instant suit against Centra Tech and

some of its principals in the Southern District of Florida on December 13, 2017.

He alleged the sale of unregistered securities in violation of Sections 12(a)(1) and

15(a) of the Securities Act of 1933 (15 U.S.C. §§ 77l(a)(1), 77o(a)). The

defendants moved to dismiss on February 2, 2018, triggering an automatic stay on

“all discovery and other proceedings” under the Private Securities Litigation

Reform Act of 1995 (“PSLRA”). 15 U.S.C. § 78u-4(b)(3)(B) (“In any private

action arising under this chapter, all discovery and other proceedings shall be

stayed during the pendency of any motion to dismiss, unless the court finds upon

the motion of any party that particularized discovery is necessary to preserve

evidence or to prevent undue prejudice to that party.”).

Rensel (together with Wang Yun He, who had been named co-lead plaintiff)

moved for leave to file an amended complaint on May 29, 2018. On September

25, 2018, the district court granted this motion and simultaneously denied the still-

pending motion to dismiss as moot. Thus, the PSLRA automatic discovery stay

lifted on September 25. But this pause was short lived. Rensel, together with He,

Chi Hao Poon, King Fung Poon, Jae Lee, Mateusz Ganczarek, and Rodney Warren

(the “Plaintiffs”) filed an amended class action complaint on October 9, 2018.

They repeated the unregistered securities claims from the first complaint and added

allegations of material misrepresentations in violation of Sections 10(b) and 20(a)

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of the Securities Exchange Act of 1934 (15 U.S.C. § 78j(b)) against Centra Tech;

its founders Sharma, Trapani, and Farkas; its executives Steven Stanley, Steven

Sykes, Allan Shutt, and Chase Zimmerman; and ICO promoters Mayweather and

Khaled. Sykes, Mayweather, and Khaled moved to dismiss the amended

complaint on December 21, 2018. The PSLRA stay therefore kicked in once again

on that day. Other defendants filed motions to dismiss later: Stanley on January

16, 2019 and Shutt on April 26.

Earlier, on November 19, 2018, the district court had ordered the parties to

advise whether they preferred a standard or expedited case schedule (with outlines

of each attached to the order), or whether they had good reasons to request a more

protracted schedule. The parties timely responded with a Joint Discovery Plan and

Status Report. The defendants requested an extended schedule, in part because of

the need for discovery related to class certification. Thus, the defendants proposed

a schedule premised on the PSLRA stay expiring by March 20, 2019; this schedule

suggested that the court impose a June 14, 2019 deadline for the Plaintiffs to file a

motion for class certification. The Plaintiffs, in turn, opined that the court’s

standard schedule would suffice “if cued from the time of the adjudication of all

pending motions to dismiss and the filing of Answers by defendants,” but observed

that the court needed to add a deadline for their class certification motion.

Notably, the Plaintiffs also informed the district court that it would be

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“inappropriate and unfair” to commence the discovery schedule until after the

PSLRA stay had been lifted. The district court did not follow up with a scheduling

order adopting its own or any party’s proposed schedule; thus, the court never

imposed a deadline for the Plaintiffs’ class certification motion.

At the Plaintiffs’ request, the Clerk entered default against Centra Tech on

January 31, 2019 for failure to appear. The district court granted Sykes’s,

Mayweather’s, Khaled’s, and Stanley’s motions to dismiss in a May 1, 2019

omnibus order. But Shutt’s motion to dismiss remained, and so, therefore, did the

PSLRA stay.

The Plaintiffs voluntarily dismissed their claims against Sharma, Trapani,

Farkas, and Zimmerman on June 5, 2019, leaving Centra Tech and Shutt as the

sole remaining defendants. On June 7, the district court ordered the Plaintiffs to

advise the court whether they intended to pursue their claims against Shutt and to

file a motion for default judgment against Centra Tech by June 20. The Plaintiffs

voluntarily dismissed their claims against Shutt on June 7, and the district court

denied Shutt’s motion to dismiss as moot (also on June 7). At long last, no

motions to dismiss remained pending, and the PSLRA discovery stay lifted once

and for all.

As ordered, the Plaintiffs moved for default judgment against Centra Tech

on June 13, 2019. That same day, the Plaintiffs moved to certify three subclasses

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of Centra Tech investors: those who had purchased Centra Tokens from Centra

Tech during the ICO between July 23 and October 5, 2017; those who had done so

between October 6, 2017 and April 20, 2018; and those who had purchased Centra

Tokens on the open market. Centra Tech opposed the motion, claiming, among

other things, that the named plaintiffs lacked standing and could not meet Federal

Rule of Civil Procedure 23’s requirements for certification because they could not

adequately represent the class and did not possess claims typical of the class

members. It also argued that the Plaintiffs had waived their rights to bring a class

action by signing agreements governing the sale of their Centra Tokens. Centra

Tech, however, did not even suggest that the Plaintiffs’ motion for class

certification should be denied because it was filed in an untimely manner.

On September 16, 2019, the district court denied the motion to certify the

three subclasses, offering two alternative grounds for its decision. First, the district

court relied on Rule 23(c)(1)(A)’s requirement that a class be certified “at an early

practicable time” to hold that the Plaintiffs’ certification motion -- filed eighteen

months after the initial complaint and six months after the amended complaint --

was untimely. The district court noted the absence of any excuse for the delay and

concluded that the Plaintiffs had purposefully delayed until the certification motion

“would be unopposed by a defaulting defendant.”

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Second, the court determined that the proposed subclasses failed to meet

Rule 23’s implicit ascertainability requirement because the Plaintiffs had not

proposed an administratively feasible method of identifying absent class members.

Plaintiffs’ reference to the existence of a Centra Tech spreadsheet listing ICO

investor information did not suffice, the district court reasoned, because the

spreadsheet covered only a subset of the members of the first proposed subclass.

Moreover, the Plaintiffs did not actually have this spreadsheet; they relied on

filings in the criminal and SEC actions describing it. The court added that the

Plaintiffs’ reference to transaction information recorded by cryptocurrency

exchanges was insufficient because the Plaintiffs had not explained to the court

how such an identification process might work.

The Plaintiffs tried again on October 1, 2019 with a renewed motion for

class certification. This time, they devoted substantial argument to both timeliness

and ascertainability. They explained that they had been waiting to move to certify

the class until the lifting of the PSLRA automatic discovery stay allowed them to

conduct certification-related discovery. Regarding ascertainability, they proposed

a new, narrowed class definition (all persons other than certain Centra Tech

insiders who had purchased Centra Tokens as part of the ICO between July 23 and

October 5, 2017), and provided an affidavit from an experienced claims

administrator detailing a claims forms process for identifying class members. The

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district court denied the renewed motion because, in its view, the Plaintiffs had not

adduced “new evidence, changed circumstances, or new information about the

class members’ claims” sufficient to justify a renewed motion.

Meanwhile, the parties had been litigating the Plaintiffs’ court-ordered

motion for default judgment against Centra Tech, which the district court granted

on December 13, 2019. The judgment ordered Centra Tech to pay damages to the

named plaintiffs based on their Centra Token holdings, which ranged from $350.10

in Rensel’s case to $2,672,864.54 for He. The district court denied Centra Tech’s

motion for reconsideration on February 3, 2020. With judgment now final, the

Plaintiffs timely appealed the interlocutory orders denying their initial and renewed

motions for class certification.

II.

By now, it is abundantly clear that the district courts enjoy wide latitude in

deciding whether or not to certify a class, and our abuse-of-discretion review of

class certification orders is accordingly deferential. See, e.g., Hines v. Widnall,

334 F.3d 1253, 1257 (11th Cir. 2003). Even so, this deference is not absolute. We

will reverse as an abuse of discretion a class certification order that represents a

clear error of judgment, including because the district court followed improper

procedures or applied the law in an unreasonable or incorrect manner. See Little v.

T-Mobile USA, Inc., 691 F.3d 1302, 1305–06 (11th Cir. 2012). Here, both of the

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district court’s alternative holdings denying the Plaintiffs’ initial motion for class

certification -- on timeliness and ascertainability -- were abuses of discretion. We

therefore vacate this order and remand for further proceedings. 1

A.

District courts have broad discretion to control their dockets and surely may

deny class certification motions as untimely, such as when unreasonable delay

causes prejudice to the opposing party. See McCarthy v. Kleindienst, 741 F.2d

1406, 1412 (D.C. Cir. 1984) (“[I]t was within the District Court’s broad discretion

to rely upon the untimeliness of the class certification motion, and the unfavorable

consequences caused by the delay, as grounds for denying certification.”). Under

the circumstances of this case, however, the district court abused its considerable

discretion in finding the Plaintiffs’ motion for class certification to be untimely.

For just under fifteen of the eighteen months between the December 13, 2017

filing of the initial complaint and the June 13, 2019 filing of the motion to certify,

the PSLRA automatic stay rule prevented the Plaintiffs from conducting any

discovery to support their motion for class certification.2 The Plaintiffs, on the

1 Accordingly, we do not address the propriety of the district court’s order denying the Plaintiffs’ renewed motion for class certification. 2 Arguably, the PSLRA stay prevented the Plaintiffs even from filing a motion to certify without having first taken discovery. While some courts have interpreted the PSLRA stay of “all discovery and other proceedings” to cover only proceedings related to discovery, see Medhekar v. U.S. Dist. Ct. for the N. Dist. of California, 99 F.3d 325, 328 (9th Cir. 1996), others have interpreted “other proceedings” to include motions for class certification, see Winn v. Symons 11 USCA11 Case: 20-10894 Date Filed: 06/29/2021 Page: 12 of 25

facts of this case, were entitled to conduct some discovery before moving for class

certification. We have observed that district courts will “often . . . need to go

beyond the pleadings and permit some discovery and/or an evidentiary hearing to

determine whether a class may be certified.” Mills v. Foremost Ins. Co., 511 F.3d

1300, 1309 (11th Cir. 2008). It is not as if the district court considered this to be a

case in which the propriety of certification was readily discernible from the

pleadings. Indeed, it found that the class was not ascertainable precisely because

the Plaintiffs had “failed to proffer any evidence that Centra Tech’s records would

be useful to identify class members.” Given the chance, the Plaintiffs may have

been able to obtain such evidence during class discovery. The PSLRA discovery

stay did not permanently lift until June 7, 2019, just six days before the Plaintiffs

filed their certification motion.

With the stay in effect during the bulk of the action’s pendency, the

Plaintiffs could not have moved for class certification any earlier than they did.

Setting aside the swift six days it took the Plaintiffs to move after the denial of the

final motion to dismiss (hardly a delay), the stay of all discovery applied except

Int’l Grp., Inc., No. IP 00-0310-C-B/S, 2001 WL 278113, at *2 (S.D. Ind. Mar. 21, 2001). In an order confirming the PSLRA stay that came relatively late in the proceedings (on May 1, 2019), the district court in this case adopted a magistrate judge’s report interpreting the PSLRA stay to apply only to discovery-related proceedings. Our own Court has not directly addressed the scope of the PSLRA stay, and we need not and do not do so today. Even assuming that the narrower, discovery-only interpretation is correct, the operation of the PSLRA stay in this case effectively prevented the Plaintiffs from moving for class certification any earlier than they did. 12 USCA11 Case: 20-10894 Date Filed: 06/29/2021 Page: 13 of 25

during two short windows: (1) one month and twenty days between the filing of

the initial complaint and the motion to dismiss that complaint, and (2) one month

and twenty-seven days between the grant of leave to amend the complaint and the

filing of the motion to dismiss the amended complaint. The Plaintiffs could not

feasibly have moved for class certification during these periods. The amended

complaint added new securities fraud claims, while the initial complaint alleged

only the sale of unregistered securities. In fact, a certification motion based on the

updated allegations, now including claims of material misrepresentations in

violation of the Securities Exchange Act of 1934, would have presented different

issues than one based on the initial complaint. See Fed. R. Civ. P. 23(a), (b)(3)

(requiring analysis of, among other things, whether “there are questions of law or

fact common to the class,” whether “the claims or defenses of the representative

parties are typical of the claims or defenses of the class,” and whether “questions

of law or fact common to class members predominate over any questions affecting

only individual members”).

During both windows when the possibility of discovery briefly remained

open, the Plaintiffs lacked even the benefit of the defendants’ answer, which would

have informed a motion for class certification by responding to the factual

allegations and specifying any affirmative defenses. See id. Moreover, these short

windows did not provide sufficient time to take certification-related discovery.

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Indeed, any certification motion brought during these early periods may well have

been dismissed as premature. See, e.g., Lopez v. Glob. Credit & Collection Corp.,

No. 17 CV 427, 2017 WL 4340098, at *2 (N.D. Ill. Sept. 29, 2017) (“The motion

for class certification is premature—no factual development has occurred, no

answer is on file, and plaintiff is not in a position to meet his burden to prove the

viability of a class action.”); Dickerson v. Lab’y Corp. of Am., Inc., No. 8:14-CV-

1390-T-30TBM, 2014 WL 12774194, at *1 (M.D. Fla. July 23, 2014) (certification

motion was premature because it “was filed prior to a response from Defendant

and prior to the commencement of discovery”); Hornsby v. McDonald’s USA,

LLC, No. 8:14-CV-2288-T-30TBM, 2014 WL 12713358, at *1 (M.D. Fla. Oct. 7,

2014) (same).

Add to all of this that the Plaintiffs had no reason to believe they should

have filed their class certification motion any earlier: the district court failed to set

a deadline for filing the class certification motion. In response to the district

court’s order, the parties timely filed a Rule 26(f) Joint Discovery Plan and

Conference Report, but the district court did not enter a scheduling order. This

omission was a violation of the Federal Rules of Civil Procedure and the Local

Rules for the Southern District of Florida. Fed. R. Civ. P. 16(b)(1)(A) (“[T]he

district judge . . must issue a scheduling order . . . after receiving the parties’ report

under Rule 26(f) . . . .”) (emphasis added); S.D. Fla. L.R. 16.1(b)(3) (providing,

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with exceptions not relevant here, that “the Court shall enter a Scheduling Order as

soon as practicable but in any event within sixty (60) days after the appearance of a

defendant and within ninety (90) days after the complaint has been served on a

defendant.”) (emphasis added). This deprived the Plaintiffs of any notice that their

June 13, 2019 certification motion might be denied as untimely. There was no

federal or local rule deadline for certification motions. The parties had every

reason to believe that a June 2019 filing would be reasonable in this case; after all,

the defendants’ proposed schedule contemplated a certification deadline of June

14, 2019. And the district court said nothing to dispel this understanding. 3 See

William B. Rubenstein, 3 Newberg on Class Actions § 7:5 (5th ed. Dec. 2020

Update) (hereinafter “Newberg”) (“[I]n most cases, the court will address the

timing of class certification at the initial case management conference[, which]

often results in a timetable agreed upon by all of the parties setting out the

deadlines leading to the class certification decision.”).

3 Given typical securities class action practices, it is not surprising that even the defendants thought an eighteen-month lapse between the initial complaint and filing a motion for class certification would be reasonable. In securities class actions filed between 2000 and 2018, the median time from the filing of the initial complaint to the class certification decision was two- and-a-half years. The time between the complaint and the certification decision was less than two years in only thirty percent of all cases and was less than one year in only four percent of cases. Stefan Boettrich & Svetlana Starykh, Recent Trends in Securities Class Action Litigation: 2018 Full-Year Review (2019), https://www.nera.com/content/dam/nera/publications/2019/PUB_Year_End_Trends_012819_Fin al.pdf. The Plaintiffs’ motion to certify simply did not come late.

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Moreover, the parties’ understanding was reasonable in light of the general

rules governing class action procedure. As we have explained, class action

plaintiffs often require discovery to inform their class certification arguments, so it

was perfectly reasonable for the Plaintiffs to believe they would not have to file

their motion until some time after the lifting of the PSLRA discovery stay. Indeed,

the defendants conditioned their suggested June 14, 2019 certification motion

deadline on the expectation that the PSLRA discovery stay would lift by March 20.

Federal Rule of Civil Procedure 23(c)(1)(A) previously required district courts to

make a certification determination “as soon as practicable”; in 2003, the Rule was

amended to require the district court to make a certification decision “at an early

practicable time.” 7AA Charles A. Wright & Arthur R. Miller, Federal Practice &

Procedure § 1785.3 (3d ed. Oct. 2020 Update). In part, this change sought to allow

“more time for class discovery.” China Agritech, Inc. v. Resh, 138 S. Ct. 1800,

1807 (2018) (internal quotation marks and citation omitted). Thus, the current

version of Rule 23(c)(1)(A) not only supports the expectation that plaintiffs will

have some opportunity for discovery before moving for class certification; it also

places the onus of ensuring a timely certification decision on the district court,

rather than on plaintiffs. 4 Fed. R. Civ. P. 23(c)(1)(A) (“At an early practicable

4 The Southern District of Florida repealed its previous rule requiring class certification motions to be filed within 90 days of the complaint in order “to conform to the December 2003 amendment to Federal Rule of Civil Procedure 23(c)(1)(A), which clarifies that a Court may 16 USCA11 Case: 20-10894 Date Filed: 06/29/2021 Page: 17 of 25

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.”).

To be sure, the Plaintiffs did not help themselves as much as they could

have. They failed to mention the lack of any real opportunity for discovery in their

certification motion or to move for limited relief from the PSLRA stay in order to

conduct certification-related discovery, something they requested with respect to

two other issues. But the district court was not without notice that the parties

believed discovery was necessary to inform the class certification decision in this

case. The joint Rule 26(f) report discussed the PSLRA stay and informed the court

that discovery “would be significantly complicated by class certification issues,”

including “hard-fought” disputes “related to proof of commonality and typicality.”

Moreover, the Plaintiffs were not required to move for PSLRA stay relief in order

to expedite the filing of a class certification motion; as we have discussed, it was

not unreasonable for the Plaintiffs to simply wait for the PSLRA stay to expire

before conducting class discovery and moving for certification.

Yet the district court denied the Plaintiffs the chance to do this: on June 7,

2019, the same day the PSLRA stay lifted upon the district court’s denial of the

last remaining motion to dismiss, the court ordered the Plaintiffs to move for

defer the decision on whether to certify a class if it is prudent to do so.” In re: Amendments to the Local Rules, Admin. Order 2011-11, at 54 (S.D. Fla. Nov. 29, 2011).

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default judgment against Centra Tech and Shutt, the only remaining defendants in

the case, 5 by June 20. Thus, events forced the Plaintiffs’ class certification hand.

If the district court entered final judgment against Centra Tech and disposed of the

case before seeing a class certification motion, it would have deprived the

Plaintiffs of their ability to obtain class certification and to pursue class-wide

damages. Therefore, they had to either move for class certification without any

supporting discovery or forgo the opportunity to move for class certification at all.

The Plaintiffs might have improved their lot by requesting relief from the order to

move for default judgment or, again, by mentioning their difficult position in their

certification brief. Even so, despite our Court having previously concluded that

discovery is “often” necessary before a class certification decision, Mills, 511 F.3d

at 1309, the district court effectively required the Plaintiffs to move for class

certification before they had any real chance to take any class discovery. It then

denied certification based in part on a lack of evidence of ascertainability, which

the Plaintiffs might have been able to address with the aid of discovery.

All of this might have been within the district court’s ample discretion if

there were any sound reasons for finding the certification motion to be untimely

even in the absence of a deadline, but there weren’t. See Newberg § 7:7 (in

deciding whether to accept a late certification motion, courts consider “the

5 Regarding Shutt, the Plaintiffs instead elected to dismiss their claims.

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circumstances causing the delay” and “whether the opposing parties have been

prejudiced by the delay”). The district court noted that the Plaintiffs filed their

motion eighteen months after the initial complaint and had provided “no excuse or

justification for this delay.” But as we have explained, considering the posture of

this case, the eighteen-month lapse was not a “delay” that required any

justification. More troubling, the district court stated that “the Plaintiffs’ delay

appears to be a deliberate decision to file the motion when it would be unopposed

by a defaulting defendant.” Yet the record belies this conclusion. The Clerk

entered default against Centra Tech on January 31, 2019, so if the Plaintiffs were

indeed playing a delay-until-default game, there was no reason for them to wait

until June to file their certification motion. The district court did not mention any

other way in which the timing might have prejudiced the defendant; nor has Centra

Tech cited any. Indeed, Centra Tech did not so much as raise timeliness as a

reason for denying the Plaintiffs’ motion for class certification when it filed its

response in opposition. Rather, Centra Tech argued that arbitration provisions

barred the action, that the named plaintiffs lacked standing and could not meet the

substantive requirements of Rule 23, and no more.

In short, the Plaintiffs could not practically have moved for class

certification any earlier than they did. Effectively, they had no choice but to move

prematurely. The Plaintiffs did not miss any class certification deadline, and their

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timing did not prejudice any party. On this record, the district court’s denial of the

Plaintiffs’ class certification motion as untimely was an abuse of discretion.

B. The district court’s alternative holding on the Plaintiffs’ initial motion for

class certification, that the proposed class was not sufficiently ascertainable, was

also an abuse of discretion.

In their motion, the Plaintiffs proposed the following three subclasses:

(1) All persons and entities who purchased CTR Tokens directly from Defendant Centra Tech during Centra Tech’s official initial coin offering from approximately June 23, 2017 through October 5, 2017; (2) All persons and entities who purchased CTR Tokens directly from Defendant Centra Tech during the remainder of Centra Tech’s initial coin offering from approximately October 6, 2017 through April 20, 2018; and (3) All persons and entities who purchased CTR Tokens on the open market as a result of Defendant Centra Tech successfully soliciting their purchases of CTR Tokens.

Relying on our unpublished decision in Karhu v. Vital Pharms., Inc., 621 F. App’x

945, 947 (11th Cir. 2015), the district court reasoned that the Plaintiffs had to

demonstrate an “administratively feasible” method of identifying class members

that was “manageable” and did “not require much, if any, individual inquiry.” The

court held that the Plaintiffs could not meet this requirement merely by referring to

a spreadsheet “that was provided to the government in the criminal case [against

the founders of Centra Tech] which provide[d] information regarding over 3,500

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purchasers of Centra Tech Tokens.” The spreadsheet as described in the criminal

complaint “would only partially cover one of the three subclasses” (the first ICO

purchaser subclass), and there was no guarantee that the government would agree

to share the spreadsheet with the Plaintiffs. Moreover, the district court reasoned

that the “Plaintiffs [had] failed to proffer any evidence that [other Centra Tech]

records would be useful to identify class members.” And their suggestion of

drawing on information gleaned from currency exchanges did not help because

“[t]he world of cryptocurrency and currency exchanges is a highly technical area

and the Plaintiffs would need to explain to the Court how currency exchanges

work, what information is stored, and how the Plaintiffs would access this

information to identify potential class members.”

The district court was right to inquire into whether the proposed subclasses

were “adequately defined and clearly ascertainable” before it considered the

express requirements of Rule 23(a). Cherry, 986 F.3d at 1302 (internal quotation

marks omitted). But after the district court’s decision, we held in Cherry that

“administrative feasibility is not a requirement for certification under Rule 23.” Id.

at 1304. In fact, the words “administrative feasibility” are nowhere to be found in

Rule 23. Cherry thus clarified that “a proposed class is ascertainable if it is

adequately defined such that its membership is capable of determination.” Id. at

1304. While Rule 23 implicitly requires that class membership must be

21 USCA11 Case: 20-10894 Date Filed: 06/29/2021 Page: 22 of 25

ascertainable since a court cannot determine issues such as commonality or

typicality if class membership is defined in vague terms, “membership can be

capable of determination without being capable of convenient determination.” Id.

at 1303. Administrative feasibility may be relevant to “the manageability criterion

of Rule 23(b)(3)(D),” but that provision requires a “comparative” analysis that is

incompatible with a threshold, standalone administrative feasibility requirement.

Id. at 1304. The court must weigh any manageability concerns against the

advantages of proceeding as a class action. Id. at 1304–05. We thus rejected

Karhu’s requirement that a Plaintiff explain to the district court exactly how the

class members can be identified in a convenient manner. Id.

Plaintiffs’ proposed subclasses easily meet the Cherry standard for

ascertainability. Membership in each of the subclasses turns on the objective,

verifiable criterion of having purchased a particular security within a particular

date range. The token purchaser spreadsheet identified many class members, and

others could have been identified through additional Centra Tech ICO records or

submission of claims forms verified by transaction records. Perhaps the third

subclass, open market purchasers, would have presented some difficulty, but even

so, the district court should have asked whether membership was “capable of

determination” rather than rejecting the Plaintiffs’ arguments on this front simply

because they had not explained precisely how they would access cryptocurrency

22 USCA11 Case: 20-10894 Date Filed: 06/29/2021 Page: 23 of 25

exchange information to identify class members. Since application of an incorrect

legal standard is an abuse of discretion, id. at 1300, the district court’s application

of the Karhu heightened ascertainability standard cannot stand.

Neither of the district court’s reasons for denying the Plaintiffs’ initial

motion for class certification withstands abuse-of-discretion review. Accordingly,

we VACATE the district court’s order denying the initial motion for class

certification and REMAND for further proceedings consistent with this opinion.

We also necessarily VACATE the final judgment. 6 We do not disturb, however,

6 Even though the named plaintiffs have received a favorable judgment on their individual claims, there remains an ongoing controversy with respect to their asserted right to represent the interests of the proposed class. “Ordinarily, only a party aggrieved by a judgment or order of a district court may exercise the statutory right to appeal therefrom.” Deposit Guar. Nat. Bank v. Roper, 445 U.S. 326, 333 (1980). But this rule “does not have its source in the jurisdictional limitations of Art. III,” so, in certain circumstances, even a party who has prevailed on the merits in district court may appeal from an adverse collateral aspect of the judgment -- “so long as that party retains a stake in the appeal satisfying the requirements of Art. III.” Id. at 333–34. Thus, in Roper, the Supreme Court held that named plaintiffs could appeal a district court’s order denying class certification even though the district court had entered final judgment awarding them damages on their individual claims. The defendants had tendered these amounts and the district court had entered judgment even though the named plaintiffs objected. Id. at 330; see also Microsoft v. Baker, 137 S. Ct. 1702, 1711 (2017) (plaintiffs met with a denial of class certification may “litigate[] the case to final judgment and then appeal[]” the adverse certification decision.). Like in Roper, the district court’s judgment in this case awarding damages on the named plaintiffs’ individual claims did not grant them relief regarding their “continuing individual interest in the resolution of the class certification question.” 445 U.S. at 336. At the very least, the named plaintiffs in this case retain an “individual interest in the resolution of the class certification question in their desire to shift part of the costs of litigation to those who will share in its benefits if the class is certified and ultimately prevails.” See id.; see also Love v. Turlington, 733 F.2d 1562, 1565 (11th Cir. 1984) (“[A] class action plaintiff presents two separate issues for judicial resolution: the claim on the merits, and the claim that he is entitled to represent a class.”). This concrete interest saves this case from mootness and is sufficiently 23 USCA11 Case: 20-10894 Date Filed: 06/29/2021 Page: 24 of 25

the district court decisions not before us on appeal, such as its determinations about

Centra Tech’s liability to the named plaintiffs. Roper, 445 U.S. at 336 (appellate

jurisdiction in an appeal of an order denying class certification is limited to the

certification issue and does not extend to “the merits of the substantive

controversy”). Nor do we express any view on the propriety of class certification

in this case other than with respect to the timeliness and ascertainability holdings in

this opinion.

related to the named plaintiffs’ “personal stake in the appeal” to confer federal appellate jurisdiction. Roper, 445 U.S. at 336, 340; see also Love, 733 F.2d at 1564–65 (named plaintiff’s settlement of her individual claim did not moot her appeal from a denial of class certification); Eisenberg v. Gagnon, 766 F.2d 770, 784–85 (3d Cir. 1985) (holding there was “no bar” to named plaintiffs’ appeal of a class certification denial even though they had obtained individual relief on the merits in the form of a default judgment against one defendant and trial victories over others, because “at a minimum” they retained an interest in shifting litigation costs if a class ultimately prevailed), superseded by rule on other grounds as stated in Mielo v. Steak ‘n Shake Operations, Inc., 897 F.3d 467, 483 (3d Cir. 2018); cf. Hines, 334 F.3d at 1257 (“Although [the named plaintiffs] all settled individual claims . . . they still have standing to appeal the denial of certification because the settlement agreement preserved their right to appeal the class certification decision.”). Importantly, the named plaintiffs moved for default judgment against Centra Tech only because the district court ordered them to do so; they did not, for example, consent to a defendant’s offer of judgment and waive their right to appeal. See Shores v. Sklar, 885 F.2d 760, 762–63 (11th Cir. 1989). Thus, the district court’s judgment awarding damages on the named plaintiffs’ individual claims did not grant them relief regarding their claim that they are entitled to represent a class. In fact, the interlocutory orders denying class certification merged into the final judgment, see id. at 763, so the final judgment resolved this claim against the named plaintiffs. Put another way, the final judgment did not give them, and in fact denied a portion of the “complete relief” they requested. See Radha Geismann, M.D., P.C. v. ZocDoc, Inc., 909 F.3d 534, 543 (2d Cir. 2018). The named plaintiffs may, therefore, obtain reversal of the portion of the district court’s judgment precluding them from representing the putative class and continue to pursue class certification (and, if successful, merits relief on behalf of the class).

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VACATED AND REMANDED.