August 10, 2016 Articles

Ascertainability Requirement Leads to Inconsistency and Uncertainty in Class Actions

By Edward Soto and Erica Rutner

Independent from the explicit elements of Federal Rule of Civil Procedure 23 is an additional requirement to obtaining class certification: ascertainability. While Rule 23 does not expressly mention ascertainability, courts have imposed an ascertainability requirement in evaluating whether a class can be certified, describing it as an "implicit" requirement for class certification. In the past, however, ascertainability was often overlooked by courts and practitioners as a requirement that could be easily met. But the last decade has seen a growing attention to ascertainability in the class action jurisprudence, with many courts embracing an increasingly stringent application of the doctrine. However, the treatment of this concept has differed widely among the circuits, with some circuit courts vehemently resisting any expansion of the doctrine. As one party recently argued to the Supreme Court, there is "mass confusion in the class action bar concerning the proper standard." Brief for Petitioner, Direct Digital, LLC v. Mullins (Oct. 26, 2015) (No. 15-549), 2015 U.S. Briefs 549, cert. denied, 136 S. Ct. (2016). Given that the Supreme Court has declined to accept certiorari on the issue on two separate occasions, litigants face considerable uncertainty and unpredictability in assessing the likelihood of class certification. This article describes the circuit courts' various interpretations of the ascertainability requirement and suggests discovery strategies for practitioners currently involved in putative class action suits.

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