October 31, 2014 Articles

The Ascertainability Requirement for Class Actions Now Has Teeth

A trio of recent decisions could reshape the consumer class action landscape

by Joseph C. Merschman and David R. Roth

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.

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