The Great Class Action Ascertainability Debate

In recent years, courts have divided sharply over whether or not Rule 23 of the Federal Rules of Civil Procedure creates an implicit requirement that a class must be ascertainable in order to be certified. This article addresses the meaning of ascertainability, the circuit split over whether and to what extent it is required, and implications of the ascertainability circuit split for class action litigants.

What is Ascertainability? Assessing the Growing Circuit Split

In addition to the Rule 23(a) and 23(b) requirements for class certification, most circuit courts have recognized another implicit requirement that must be met before a Rule 23(b)(3) class can be certified: ascertainability. But what ascertainability means and whether and when that requirement can be satisfied has been hotly debated in the courts.

Two definitions of (or tests for) ascertainability have emerged: heightened ascertainability and lesser ascertainability. Courts in the First, Third, Fourth and Eleventh Circuits have adopted the heightened ascertainability requirement. In these circuits, a class cannot be certified unless the class is sufficiently definite and plaintiffs demonstrate an administratively feasible way for the court to determine whether a particular individual is a member of the class. “If class members are impossible to identify without extensive and individualized fact-finding or ‘mini-trials,’ then a class action is inappropriate.” Marcus v. BMW of North America LLC, 687 F.3d 583, 593 (3d Cir. 2012). On the other hand, the Second, Sixth, Seventh, Eighth and Ninth Circuits have rejected the heightened ascertainability requirement, finding that there is no independent “administrative feasibility” prerequisite to class certification.

Originally published in Law360; reprinted with permission.