Ascertaining Potential Plaintiffs

Given that Rule 23's implied “ascertainability” requirement is a fundamental tenet of class certification, courts have routinely required plaintiffs to have a “reliable” and “administratively feasible” method to establish ascertainability, one that permits a defendant to challenge the evidence put forth. Up until now, in many courts, before a purported “purchaser” may join a class action targeting a product, the potential class member must make a showing that (s)he actually purchased the product and was potentially damaged by the alleged wrong. The U.S. Court of Appeals for the Seventh Circuit's recent decision in Mullins v. Direct Digital LLC, No. 15-1776 (7th Cir. July 28, 2015), however, provides a decisive counterpoint to decisions in the U.S. Courts of Appeals for the Third and Eleventh Circuits. These are developments to watch as the issue in all likelihood winds its way to the United States Supreme Court.