January 20, 2017 Top Story

Ascertainability Not Required in 23(b)(2) Class Action, Says Court

Trend continues as Sixth Circuit reaches same conclusion as First, Third, and Tenth

By Catherine M. Chiccine

A federal appellate court determined that ascertainability is not required for class actions filed under Federal Rule of Civil Procedure 23(b)(2). Rule 23(b)(2) requires the class to seek a single injunction that will act as one remedy for all and, as such, the unnamed class members do not need to be ascertained, reasoned the U.S. Court of Appeals for the Sixth Circuit. The ruling follows a number of similar decisions issued in other federal circuits.

Court Affirms Ruling Certifying 23(b)(2) Class Despite Lack of Ascertainability

In Cole v. City of Memphis, the plaintiff brought a class action in the U.S. District Court for the Western District of Tennessee, alleging that the city's practice of sweeping the popular Beale Street entertainment district for possible criminals at 3:00 a.m. on weekend nights violated his and the class members' right to intrastate travel. Under Federal Rule of Civil Procedure 23(b)(2), the plaintiff sought a class-action remedy enjoining the city from conducting such sweeps. The district court certified the Rule 23(b)(2) class. After a jury verdict in the plaintiff's favor, the court entered an order enjoining the city from sweeping Beale Street.

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