“Ascertainability” in the context of civil litigation involves the identification of individuals who qualify for membership in a putative class action. Although not an explicit requirement under Rule 23, since the US Court of Appeals for the Third Circuit refused to certify a class due to difficulties in objectively and efficiently identifying class members in Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013), lower federal courts have been sharply divided over the meaning and extent of the ascertainability requirement for certifying a class. The ascertainability issue has taken on particular importance in low-value consumer class actions involving inexpensive retail products, as these cases have become an increasing burden for manufacturers, distributors, and retailers in the current litigation environment—involving a flood of class actions over labeling on consumer products.
Unfortunately, especially for companies that operate nationwide, the US Supreme Court has not yet intervened in this quagmire. After having denied certiorari in two cases last term that addressed ascertainability, the next spate of cases from the Ninth Circuit likely will not ripen for consideration by the Supreme Court until the 2017 Term. Thus, uncertainty and forum-shopping by plaintiffs’ lawyers exploiting the split among the courts are likely to persist for the foreseeable future.
The Third Circuit, as well as other state and federal courts, have consistently recognized that “an essential prerequisite of a class action ... is that the class must be currently and readily ascertainable based on objective criteria.” Marcus v. BMW of North Am., LLC, 687 F.3d 583, 593 (3d Cir. 2012). “If class members are impossible to identify without extensive and individualized fact-finding or ‘mini-trials,’ then a class action is inappropriate.” Id. at 593. In Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013), and Hayes v. Wal-Mart Stores, Inc., 725 F.3d 349 (3d Cir. 2013), the Third Circuit provided much-needed guidance regarding the implementation of that ascertainability requirement. The Third Circuit recognized in Carrera that “the plaintiff must demonstrate his purported method for ascertaining class members is reliable and administratively feasible, and permits a defendant to challenge the evidence used to prove class membership.”
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