The Ascertainability Requirement for Class Actions Now Has Teeth

October 31, 2014 Published Work
American Bar Association Commercial & Business Litigation Committee Website

Originally published on the American Bar Association Commercial & Business Litigation Committee Website, October 31, 2014, © 2014

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A growing number of courts are denying motions for class certification on the ground that the members of the proposed class are not readily ascertainable. While courts have recognized this ascertainability requirement for years, they rarely had invoked it to bar class certification. But a trio of Third Circuit decisions has given the ascertainability requirement new bite. The Third Circuit and a number of lower courts have denied class certification when the plaintiffs could not show that there was an objective and administratively feasible way of identifying the members of the proposed class. This trend could dramatically reshape the class action landscape, particularly in consumer cases, where there often is no record of who bought the product at issue. But not all courts are onboard with the Third Circuit's approach, making it likely that this issue will soon reach another court of appeals and, possibly, the Supreme Court. In the meantime, defendants have a powerful tool at their disposal in the fight against class certification.

Roots of the Ascertainability Requirement

Under Rule 23(a), a putative class action must meet four requirements, which are commonly referred to as numerosity, commonality, typicality, and adequacy of representation. See Fed. R. Civ. P. 23(a). A proposed class also must satisfy the terms of Rule 23(b), which vary depending on the type of class the plaintiffs seek to certify. The term "ascertainable" or any variant of it cannot be found in the text of Rule 23. But for years, courts have recognized that "[t]he existence of an ascertainable class of persons to be represented by the proposed class representative is an implied requirement of [Rule] 23." John v. Nat'l Sec. Fire & Cas. Co., 501 F.3d 443, 445 (7th Cir. 2007) (citing cases); see also In re Initial Pub. Offerings Sec. Litig., 471 F.3d 24, 30 (2d Cir. 2006); Crosby v. Soc. Sec. Admin. of U.S., 796 F.2d 576, 580–81 (1st Cir. 1986); 1 William B. Rubenstein, Newberg on Class Actions § 3:2–3:3 (5th ed. 2014).