May 31, 2017
The Ascertainability Debate Part II: Supreme Court Asked to Consider Standard for Identifying Absent Class Members

Should district courts certify class actions in consumer-related litigation when there is no reliable method to identify potential class members? This hotly contested issue has sharply divided courts over whether a plaintiff must prove at the certification stage that she is able to define the class and who belongs in it. The question particularly vexes courts when the only discernible method of proving class membership is either a cash register receipt or reliance upon an often faulty memory.

As we reported recently, one of the key provisions in the proposed federal Fairness in Class Action Litigation Act of 2017 is a requirement that courts determine at the certification stage whether the potential class members can be identified with reference to objective criteria. The legislation would also require that plaintiffs demonstrate there is a reliable and administratively feasible mechanism to determine if class members fit the definition and for distributing monetary relief directly to a substantial majority of the class. This legislation has passed through the House of Representatives and is currently under consideration in the Senate.

In a separate effort to make ascertainability a class certification requirement, a litigant has recently filed a petition for writ of certiorari asking the Supreme Court to resolve a substantial circuit split whether Rule 23 permits a court to certify a damages class where there is no reliable or feasible way to identify potential class members.1 If the Supreme Court accepts the case, the Court can resolve the circuit split and provide its endorsement that lower courts must, as prerequisite to certification, find that putative class members can be reliably identified to belong in the defined class rather than await a trial or unwieldy and expensive claims process where the veracity of the claims would be tested.

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