A pair of food labeling cases set to be heard this month by the Ninth Circuit could carve out some much-needed guidance on the increasingly critical issue of how to identify members of a class action.
Ascertainability, a term coined by the class action bar, has become the subject of rising debate in the courts as more cases get filed over cheap consumer goods. Despite calls for reform, the U.S. Judicial Conference’s Committee on Rules of Practice and Procedure declined to include ascertainability in its proposed changes to Rule 23 this month, and the U.S. Supreme Court has rejected at least two petitions this year on the issue.
“This issue really becomes very significant in low-value consumer class actions where the amount of the product is relatively low,” said David Sellinger, a shareholder in Greenberg Traurig’s Florham Park, New Jersey, office who is following both Ninth Circuit cases.