The Third Circuit Distinguishes Between Types Of Class Actions For Purposes Of Its Ascertainability Analysis

Action Item: Shelton is the latest in a recent line of cases from the Third Circuit demonstrating that application of the ascertainability requirement in class action litigation continues to evolve.

In a recent precedential decision, Shelton v. Bledsoe, the Third Circuit addressed whether ascertainability is a requirement for certification of injunction/declaratory relief class actions arising under Rule 23(b)(2). 2015 WL 74192 (3d Cir. Jan. 7, 2015). While citing to and discussing its recent trilogy of decisions that required an ascertainability finding at the class certification stage in class actions arising under Rule 23(b)(3) (See Marcus v. BMW of N. Am., LLC, 687 F.3d 583 (3d Cir. 2012); Hayes v. Wal-Mart Stores, Inc., 725 F.3,d 349 (3d Cir. 2013); Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013)), the Court in Shelton refused to extend this requirement to injunction/declaratory relief class actions arising under Fed. R. Civ. P. 23(b)(2) and opined that "it does not follow from our holding in Marcus that ascertainability is always a prerequisite to class certification." Shelton, 2015 WL 74192 at *5.

Shelton, a federal inmate, brought a class action for alleged violations of the Eighth Amendment and the Federal Tort Claims Act. The District Court denied Shelton's motion to certify an injunctive class (among others), because it found that the proposed class was not ascertainable. The Third Circuit reversed the District Court's denial of Shelton's class certification motion. Relying on precedent in other circuits and an Advisory Committee note to Fed. R. Civ. P. 23, the Court noted that "illustrative" examples of Rule...