Strict Ascertainability Standard Continues to Apply in Third Circuit

Predictions from some quarters that the Third Circuit's decision in Byrd v. Aaron's, 784 F.3d 154 (3d Cir. 2015), signaled a weakening of the "ascertainability" standard for class actions brought in the federal courts in New Jersey have not been borne out, as a survey of District of New Jersey decisions demonstrates that the courts continue to apply a strict standard for "ascertainability." This trend has consequences for consumer class actions in which there is difficulty verifying who is in the class or in which the means of doing so is not administratively feasible.

In recent years, the Third Circuit has led the way in defining a strict standard for analyzing when a proposed class is "ascertainable" for class certification purposes. Unlike other circuits and New Jersey state courts that just require a proposed class to be objectively defined, the Third Circuit also requires that class members be identifiable by verifiable and administratively feasible means. The law in the Third Circuit was settled in a trilogy of decisions in Marcus v. BMW of North America, 687 F.3d 583 (3d Cir. 2012); Hayes v. Wal-Mart Stores, 725 F.3d 349 (3d Cir. 2013); and Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013).

The Third Circuit laid the groundwork for its current analysis in Marcus, in which the court reaffirmed that "an essential prerequisite of a class action … is that the class must be currently and readily ascertainable based on objective criteria," and also that "[i]f class members are impossible to identify without extensive and individualized fact-finding or 'mini-trials,' then a class action is inappropriate." The Marcus panel held that the mere "say so" of the class member is not enough to establish class membership.

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