'Ascertainability': A New Hurdle For Putative Class Action Plaintiffs?

This article originally appeared in the American Bar Association's Section of Antitrust Law, Civil Practice & Procedure Committee's Young Lawyers Advisory Panel publication, Perspectives in Antitrust, Volume 4, Number 1 in November 2015.

Must a court determine whether the individual members of a putative class of plaintiffs are identifiable, or "ascertainable," before it may certify a class under Federal Rules of Civil Procedure 23(a) and 23(b)(3)? There currently is a federal circuit court split on this question, creating uncertainty for class action litigants across the country. How this issue is resolved, including potentially by Supreme Court review, will have significant implications for antitrust cases, especially those involving low-cost consumer products where class members may not have records of their purchases. In light of the Supreme Court's recent decisions related to class certification, this author predicts that, if reviewed by the Supreme Court, the Court will endorse a rigorous application of the "ascertainability requirement," creating yet another hurdle for class action plaintiffs. However, even if that occurs, it will not be the death knell to consumer class actions, as some would have us believe. That is because, with recent technological changes, there is a practical trend toward increased ability to track purchases of low cost products, because of the increase in online sales and the improved consumer data tracking by retailers and credit card companies. As a result, ascertainability may win the day, but its effect will not be to quash consumer class actions.

Ascertainability Defined, and the Evolution of the Circuit Court Split

Ascertainability has been described as an "implicit" "prerequisite" to class action certification under Rules 23(a) and 23(b)(3). Ascertainability requires that the members of a putative class be readily identifiable "based on objective criteria," without "extensive and individualized fact-finding or 'minitrials.'" Marcus v. BMW of North America, LLC, 687 F.3d 538, 592-93 (3d Cir.2012); Mullins v. Direct Digital, LLC, 795 F.3d 654, 659 (7th Cir. 2015).

Ascertainability is most frequently challenged in cases involving claims of false advertising or unfair and deceptive practices against manufacturers of low cost products, such as over-the-counter medications, in which the putative class consists of individuals who purchased the products at a retailer, and not directly from the manufacturer. Such individual consumers often lack proof of each purchase he or she made - i.e., it is unlikely that he or she will have kept his or her receipts - and it is therefore difficult, if not impossible, to prove whether, when and how often each putative class member bought the product. The fundamental issue underlying ascertainability in this context is whether a defendant's due process rights would be violated were a court to certify a class made up of unidentifiable plaintiffs, because a defendant has a right to pursue every defense available to it, including to challenge whether plaintiffs who bring suit against it actually purchased its product(s). A defendant might argue, for example, that if the putative class members cannot demonstrate membership in the class at the certification stage, then certification is inappropriate because the class would potentially contain uninjured members or, at the least, members who could not prove their injury at a later stage in the litigation.

The Third Circuit was the first appellate court to directly address and endorse an ascertainability requirement, in two decisions roughly one year apart, Marcus and Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013). The First, Fourth and Eleventh Circuits were the next to weigh in...