“Ascertainability” involves identifying individuals who qualify for membership in a putative class action in federal courts. Courts generally have agreed that ascertainability is an implicit requirement of Federal Rule of Civil Procedure 23, but have differed over what ascertainability means and how to show that it has been met. These differences have become sharper since the 3rd U.S. Circuit Court of Appeals held in Carrera v. Bayer Corp. that a class was not ascertainable where no objective data in defendant’s possession identified the class members. Without such data, class members could be determined only by self-identification, and the 3rd Circuit rejected “say-so” classes as not ascertainable in Marcus v. BMW of North Am., LLC.
In most class actions involving inexpensive retail products, a consumer’s “say-so” will be the only evidence of purchase, because neither manufacturers nor retailers maintain records to match up purchasers with purchases. Courts have had to decide whether to require more than self-identification to permit a class to be certified. The U.S. Supreme Court has not directly addressed ascertainability, which is unfortunate for companies that operate nationwide, because lack of a uniform interpretation of ascertainability can produce very different outcomes from circuit to circuit.
For a time, it seemed that three 9th U.S. Circuit Court of Appeals cases might make the circuit split on ascertainability so stark that the U.S. Supreme Court would take up the issue. Now that two of those cases have been argued, and one of them has been decided — albeit in an unpublished opinion that is nonprecedential — it appears we are no closer to a meaningful uniform nationwide definition of ascertainability.