UNITED STATES – Ascertainability of the class membership at the certification stage is a growing issue in U.S. class action litigation. A class definition satisfies Rule 23’s implied ascertainability requirement if the class is defined by objective factors and it is administratively feasible to determine whether a particular individual belongs to the class. Although this factor is not explicitly required by the terms of Rule 23 for certification of a class, it is increasingly becoming a key threshold issue. The issue of the ascertainability of class members at the certification stage has been a focal point of class action litigation since the Carrera decision of the Third Circuit in 2013, which highlighted its importance because it “provides due process by requiring that a defendant be able to test the reliability of the evidence submitted to prove class membership.”
The Third Circuit in Carrerra refused to certify a class of consumers who may have purchased small value items during the class period, but failed to keep receipts. The appellate court determined that affidavits from the purported purchasers, and therefore class members, was insufficient. This decision has made the ascertainability of the class a powerful issue early in the litigation.
While Carrerra addressed an instance in which a court found affidavits to be insufficient, some courts have found the opposite in certain instances. For example, some courts have found that, due to the similarity between the products at issue and the placement of the allegedly misleading claims on all of those products, ascertainability through consumer affidavits was sufficient and appropriate. On the other hand, a narrow subset of products invites questions as to whether the consumer bought the specific product at issue, and affidavits have not been found to be sufficient.
Recently, a petition was filed in the Seventh Circuit Court of Appeals in Balschmiter v. TD Auto Fin. LLC, an Eastern District of Wisconsin case brought under the Telephone Consumer Protection Act, to address the ascertainability requirements for a case in which the phone numbers, but not names, of potential class members were known. The plaintiff has the telephone numbers of those who had been “robocalled” by defendant lender, but who were not debtors. Plaintiff seeks a finding that such information is enough to show that the class is ascertainable, despite the district court’s criticism of plaintiff’s inability to find a proven method for identifying the class members names. The district court in Balschmiter also noted the five-year class period as increasing the difficulty of finding the owners of the numbers at a specified time in the past, when those numbers may have changed hands multiple times. The district court distinguished this case from others in which the class period was much shorter.
The cases addressing ascertainability all turn on the class definition. A longer class period, narrowly identified products, and previously unproven methods of identification will all decrease the likelihood that a class will be determined to be ascertainable.
