March 18, 2013 Articles

Circumventing the Ascertainability Roadblock

Does Rule 23(b)(2) offer a creative way around this requirement for consumer plaintiffs?

By Dawn M. Goulet

Almost every state has one or more consumer-protection statutes designed to protect small-claims consumers. These laws typically permit, if not expressly contemplate, enforcement by private class-action plaintiffs. Since the enactment of the Class Action Fairness Act, such cases are almost exclusively brought in federal district courts, where plaintiffs must survive a “rigorous” analysis of the requirements set out in Federal Rule of Civil Procedure 23 in order to pursue their claims on a class-wide basis. Although small-claims consumer class actions involving the purchase of ordinary household items are largely unaffected by arbitration clauses and class-action waivers that have stopped other class actions in their tracks, in recent years small-claims consumers have faced a different roadblock: the judicially created “ascertainability” requirement.

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