Capitalizing on Concerns over Ascertainability Regardless of the Forum

Much has been written about the ascertainability requirement in the last decade, garnering a wave of attention by litigants, courts, and scholars. Given the recent emphasis of the doctrine, there is no question that ascertainability—and specifically, the issue of class member identification—has become a powerful tool for defeating consumer class actions. Yet, the circuit courts are increasingly divided on how to approach the issue of ascertainability and class member identification. This can lead to considerable forum-shopping opportunities for plaintiffs, while creating profound difficulties for defendants in navigating the ever-increasing divide on the issue. This article discusses the current circuit split on the issue and then suggests strategies that defendants can potentially employ to capitalize on issues of class member identification—wherever a plaintiff may choose to file suit.