Third Circuit Rulings Give Teeth to Ascertainability Requirement for Class Certification

From a practitioner's standpoint, one of my five least-favorite recent developments in federal class-action practice is the explosion in the number of premature motions for class certification that would-be class representatives file.

I understand the motivation behind these motions—often filed along with the initial complaint. Of course, they are not seriously intended to induce a ruling on class certification; to the contrary, they expressly request that the issue be tabled until the completion of discovery. The real reason that plaintiffs' counsel file these motions is that they want to preclude the defendant from mooting the putative class action by making an offer of judgment under Rule 68 to the named plaintiff for the full amount of his or her claims. The idea is that by having moved for class certification—even if only nominally—the plaintiff has done enough to start the ball rolling towards certification to allow the class action to continue even if the named plaintiff's claims are extinguished. And while many creative ideas are dreamed up in the offices of plaintiffs' lawyers, this is not one of them: This particular tactic stems from Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011), in which the Seventh Circuit held that a putative class action was moot after a Rule 68 offer, but suggested the possibility that mootness could be avoided by an early motion for class certification.

There can be no debate that these motions are annoying. They represent pure busywork for everyone involved: the plaintiff has to draft them, even if that amounts simply to parroting the requirements of Rule 23; the defendant often has to file a response or enter a stipulation to postpone further briefing; and the court has to juggle its calendar to account for these Potemkin motions. The paperwork alone results in a lot of dead trees (or their virtual equivalent). And these motions don't save any time or effort in the fraction of these cases that actually reach the class-certification stage; the briefing inevitably must be redone following discovery. Moreover, these motions risk cluttering up judges' pending-motions reports.

Unsurprisingly, there has been some judicial backlash against these motions. The latest example—which is nicely understated—is from Judge Stefan R. Underhill of the District of Connecticut, who described one such motion in a TCPA class action, Physicians Healthsource Inc. v. Purdue Pharma LP, No. 3:12-cv-1208 (D. Conn. Sept...