March 18, 2013 Articles

Ascertainability in Alleged Misrepresentation Cases

Defense counsel should attack class definitions early.

By Todd Willis

“The existence of an ascertainable class of persons to be represented by the proposed class representative is an implied prerequisite of Federal Rule of Civil Procedure 23.” John v. Nat’l Sec. Fire & Cas. Co., 501 F.3d 443, 445 (5th Cir. 2007). This implied prerequisite stems from the requirement in Rule 23(c)(1)(B) that “[a]n order . . . certifyi[ng] a class action must define the class and the class claims, issues, or defenses.” In keeping with this provision, courts have held that an order certifying a class must include, among other things, “a readily discernible, clear, and precise statement of the parameters defining the class or classes to be certified.” Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 592 (3d Cir. 2012) (quotation omitted). In other words, “the class sought to be represented must be adequately defined and clearly ascertainable.” Union Asset Mgmt. Holding A.G. v. Dell, Inc., 669 F.3d 632, 639 (5th Cir. 2012).

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