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.

The Third Circuit Approach

We thought the “ascertainability” question regarding the identity of potential class members was answered when the Third Circuit, relying heavily on its decision in Marcus v. BMW of North America, LLC, 687 F.3d 583, 594 (3d Cir. 2012), explained that a plaintiff “must show by a preponderance of the evidence that the class is 'currently and readily ascertainable' based on objective criteria, and the trial court must undertake a rigorous analysis of the evidence to determine if the standard is met.” Carrera v. Bayer Corp., 727 F.3d 300, 306 (3d Cir. 2013). The Third Circuit held that, because plaintiffs put forth no objective criteria and the trial court's analysis was lacking, the order certifying the class was an abuse of discretion. See id.

In Carrera, consumers, wanting to target advertising for Bayer's One-A-Day' WeightSmart diet supplement, did not have records to establish that they had ever purchased the product. Applying the above standard, the Third Circuit held that the trial court abused its discretion in accepting plaintiffs' proposals for determining class membership ' namely, retailer records of online sales and/or loyalty/rewards card sales or affidavits of putative class members. There was “no evidence that a single purchaser of WeightSmart could be identified using records of customer membership cards or records of online sales” and “no evidence that retailers even have records for the relevant period.” Id.'at 309. The trial court also abused its discretion in allowing plaintiffs to proceed on unverifiable affidavits of class members. This would improperly deny Bayer the opportunity to challenge class membership. Id. “This is especially true where the named plaintiff's deposition testimony suggested that individuals will have difficulty recalling their purchases of WeightSmart.” Id.

Carrera contains an important discussion regarding the due process rights of defendants in class actions. The court explained that a “defendant in a class action has a due process right to raise individual challenges and defenses to claims, and a class action cannot be certified in a way that eviscerates this right or masks individual issues.” Id. at 307. The court stressed that a “defendant has a similar, if not the same, due process right to challenge the proof used to demonstrate class membership as it does to challenge the elements of a plaintiff's claim,” and that “[a]scertainability provides due process by requiring that a defendant be able to test the reliability of the evidence submitted to prove class membership.” Id.

Decisions in the Third Circuit and elsewhere have emphasized the feasibility requirement for ascertaining class members under Rule 23(b)(3). In these decisions, courts have limited the viability of class actions where class members cannot be readily identified, as is the case when class representatives bring an action on behalf of class members regarding unsubstantiated purchase of the product allegedly at issue. See, e.g., In re Clorox Consumer Litig., 301 F.R.D. 436, 440-442 (N.D. Cal. 2014); Langendorf v. SkinnyGirl Cocktails, LLC, 306 F.R.D. 574, 578-579 (N.D. Ill. 2014).

For example, relying on a trio of Third Circuit precedent, Stewart v. Beam Global Spirits & Wine, Inc., 2014 WL 2920806, at *14 (D.N.J. June 27, 2014), denied plaintiffs' motion for class certification. Plaintiffs' proposal for identifying members of the putative class ' submission of affidavits ' did not satisfy Rule 23's ascertainability requirement. And, when plaintiffs made a second attempt to clear the ascertainability hurdle in 2015, the court similarly declined to certify the class. Bello v. Beam Global Spirits & Wine Inc., 2015 WL 3613723, at *4 (D.N.J. June 8, 2015). Again, plaintiffs failed to demonstrate an administratively feasible method of determining who belongs to the proposed consumer class of purchasers of SkinnyGirl products. Id. at *6-7. Moreover, as in Carrera, the named plaintiffs here “have demonstrated difficulty remembering the details of their purchases.” Id. at *9.

Other Jurisdictions

Other courts have relied on the Third Circuit's reasoning. In Karhu v. Vital Pharmaceuticals, Inc., 2014 WL 815253, at *3 (S.D. Fla. Mar. 3, 2014), aff'd, 2015 WL 3560722 (11th Cir. June 9, 2015), the Southern District of Florida, citing Carrera, denied the plaintiff's motion for class certification because the plaintiff failed to suggest any practical means of verifying class membership. The court would not allow absent class members to identify themselves through the submission of affidavits, holding that “accepting affidavits ' of purchases without verification would deprive [defendant] of its due process rights to challenge the claims of each putative class member.” Id.; see also Donaca v. Dish Network, LLC, 303 F.R.D. 390, 396-397 (D. Colo. 2014) (relying on Carrera in holding that the class of persons who received robocalls was not ascertainable).

In the Northern District of California, while many courts still refuse to impose the stringent Carrera standard (see below), many have found its objective records requirement to be persuasive authority, and have denied certification when there are multiple product combinations at issue. See, e.g., Kosta v. Del Monte Foods, Inc., 2015 WL 4593175, at *8-10 (N.D. Cal. July 30, 2015) (denying class certification because too many label and product combinations prevented accurate purchase recall needed to identify class members); Sethavanish v. ZonePerfect Nutrition Co., 2014 WL 580696, at *5-6 (N.D. Cal. Feb. 13, 2014) (denying class certification of a purported nationwide class of purchasers of nutrition bars labeled “all natural”; plaintiff had not presented any reasonable method for identifying class members or ruling out fraudulent claims. “Even though there is no requirement that a named plaintiff identify all class members at the time of certification, that does not mean that a named plaintiff need not present some method of identifying absent class members to prevail on a motion for class certification”); Astiana v. Ben & Jerry's Homemade, Inc., 2014 WL 60097, at *3 (N.D. Cal. Jan. 7, 2014) (class certification of “all natural” label claims on ice cream products containing alkalized cocoa was rejected because only a fraction of the ice cream contained the ingredient; ascertainability also implicated because plaintiffs could not separate class members who purchased the product with a different label or different ingredients; further, the court agreed with defendant's argument that plaintiffs were required to introduce evidence that customers paid a premium for “all natural” ice cream and that a class should not be certified because plaintiff could not prove that consumers paid more for ice cream with this label on a nationwide basis).

The Kosta court explained: “While the lack of proof of purchase may be a factor, it is not dispositive ' here, the court weighs more heavily the variations in the product included in the proposed class which make it much more difficult,” apparently agreeing with the defendant that to allow the case to go forward would require class members to pass a “memory test” to identify which product, flavor and label variation they bought. Id. at *9-10. Perhaps the Kosta court was emboldened because plaintiffs also failed to show that common questions of law and fact supported class certification and failed to offer evidence of the materiality of the purportedly false statements were manageable on a classwide basis. Id. at *10-11.

Circuit Split Emerges over Ascertainability

Although many courts have looked to Carrera for guidance on methodology surrounding ascertainability, as indicated above, federal courts in California have refused to adopt the strict approach of the Third Circuit. Indeed, in Bruton v. Gerber Products Company, 2014 WL 2869885, at *5 (N.D. Cal. June 23, 2014), the district court declined to extend Carrera, stating that “[i]n this Circuit, it is enough that the class definition describes a set of common characteristics sufficient to allow a prospective plaintiff to identify himself or herself as having a right to recover based on the description”), citing McCrary v. The Elations Co., LLC, 2014 WL 1779243, at *8 (C.D. Cal. Jan. 13, 2014); see also Rahman v. Mott's LLP, 2014 WL 6815779, at *4 (N.D. Cal. Dec. 3, 2014); Lilly v. Jamba Juice Co., 2014 WL 4652283, at *4 (N.D. Cal. Sept. 18, 2014) (“Adopting the Carrera approach would have significant negative ramifications for the ability to obtain redress for consumer injuries ' it is precisely injuries in circumstances like these, where the injury to any individual consumer is small, but the cumulative injury to consumers as a group is substantial, that the class action mechanism provides one of its most important social benefits.”); Forcellati v. Hyland's, Inc., 2014 WL 1410264, at *5 (C.D. Cal. April 9, 2014) (“Given that facilitating small claims is '[t]he policy at the very core of the class action mechanism,' we decline to follow Carrera.”).

Moreover, the Ninth Circuit denied defendant's petition for permission to review a district court ruling that allowed almond milk purchasers to proceed on a class basis with their claims alleging that the products' labels stating the milk was “all natural” and included “evaporated cane juice” were misleading. Blue Diamond Growers v. Werdebaugh, Case No. 14-80084 (9th Cir. Aug. 22, 2014) (interlocutory review denied). Although Blue Diamond argued in its petition for review that the district court's decision “exacerbates a split of authority among district courts in this circuit over the threshold showing that putative class representatives must make to demonstrate an ascertainable class in food mislabeling cases,” and that Dr. Oral Capps' regression analysis for calculating damages fell short under Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), the U.S. Court of Appeals for the Ninth Circuit declined to review the district court's ruling.

Then, a split panel of the U.S. Court of Appeals for the First Circuit, in In re Nexium Antitrust Litigation, 777 F.3d 9, 25 (1st Cir. 2015), decided that a class action may be certified when it includes a de minimis number of uninjured class members. The dissenting opinion points out that the majority glances over Carrera and other decisional law and breaks new ground that permits the use of affidavits and/or declarations to determine injured versus uninjured class members. Id. at 33-34.

More recently, in Karhu v. Vital Pharmaceuticals, Inc., 2015 WL 3560722, at *5 (11th Cir. June 9, 2015), the Eleventh Circuit held that third-party sales records could be used as objective proof to show the identity of class members. The court explained, however, that certification was properly denied because the plaintiff failed to raise the argument in his certification motion to the district court. Id.

And then, in late July 2015, the Seventh Circuit rejected outright the Third Circuit's ascertainability standard that requires plaintiffs in consumer class suits to provide a reliable and administratively feasible way to identify class members at the certification stage. Mullins v. Direct Digital, LLC, 2015 WL 4546159, at *7 (7th Cir. July 28, 2015). (And, with Jones v. ConAgra Foods Inc., Case No. 14-16327, the Ninth Circuit will most likely be the next Court of Appeals to weigh in on the issue.) Mullins held that if courts thoroughly apply Rule 23, there is no need for a heightened requirement or methodology for identifying class members.

The Seventh Circuit Approach

In Mullins, a case involving class status for a group of dietary supplement buyers, the Seventh Circuit cautioned that “district courts should continue to insist that the class definition satisfy the established meaning of ascertainability by defining classes clearly and with objective criteria.” Id.'at *16.

If a class is ascertainable in this sense, courts should not decline certification merely because the plaintiff's proposed method for identifying class members relies on affidavits.” Id. Calling Carrera's approach the “high-water mark of its developing ascertainability doctrine,” the Seventh Circuit explained that the approach “goes much further than the established meaning of ascertainability and in our view misreads Rule 23. Id. at *7.

In affirming class certification, the Seventh Circuit explained that the class definition is not vague because it is not based on subjective criteria and does not create a “fail-safe” class. Id. at *5. The court focused on the class definition itself rather than on whether it would be difficult to identify certain members of the class, explaining that policy concerns regarding identification of class members could be adequately addressed by the Rule 23(b)(3) “superiority” requirement (i.e., that class treatment is “superior” to other methods of handling the case). Id. at *7-8.

It may be important to note that after Carrera, the Third Circuit, in a case involving consumers who raised privacy claims with regard to their computers, ruled on ascertainability in a way that makes one wonder if it, too, feels Carrera was too strict. Byrd v. Aaron's Inc., 784 F.3d 154, 169 (3d Cir. 2015), ruled that the proposed classes of owners and lessees were ascertainable because there were “objective records” that could “readily identify” the class members, i.e., records to identify the computers on which spyware was activated and the identity of customers who bought or leased the computers. Rest assured that should the issue be heard by the U.S. Supreme Court, proponents of the Seventh Circuit approach will raise this rift in the Third Circuit as further support for a more lenient standard.

Conclusion

Courts across the country are paying increased attention to “ascertainability” of class members. The First and Seventh Circuits (and a sprinkling of Ninth Circuit precedent) have created and endorsed a consumer-friendly method for identifying class members that has been rejected by other federal courts. Companies in the food and beverage industries, where consumers do not typically retain receipts, may find this circuit split to be especially important and will likely be on the lookout for a petition for a writ of certiorari to the United States Supreme Court.

Vivian Quinn, a member of this newsletter's Board of Editors, is a partner and Tracey Ehlers is a senior associate at Nixon Peabody LLP.

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.

The Third Circuit Approach

We thought the “ascertainability” question regarding the identity of potential class members was answered when the Third Circuit, relying heavily on its decision in Marcus v. BMW of North America , LLC , 687 F.3d 583, 594 (3d Cir. 2012), explained that a plaintiff “must show by a preponderance of the evidence that the class is 'currently and readily ascertainable' based on objective criteria, and the trial court must undertake a rigorous analysis of the evidence to determine if the standard is met.” Carrera v. Bayer Corp. , 727 F.3d 300, 306 (3d Cir. 2013). The Third Circuit held that, because plaintiffs put forth no objective criteria and the trial court's analysis was lacking, the order certifying the class was an abuse of discretion. See id.

In Carrera, consumers, wanting to target advertising for Bayer's One-A-Day' WeightSmart diet supplement, did not have records to establish that they had ever purchased the product. Applying the above standard, the Third Circuit held that the trial court abused its discretion in accepting plaintiffs' proposals for determining class membership ' namely, retailer records of online sales and/or loyalty/rewards card sales or affidavits of putative class members. There was “no evidence that a single purchaser of WeightSmart could be identified using records of customer membership cards or records of online sales” and “no evidence that retailers even have records for the relevant period.” Id.'at 309. The trial court also abused its discretion in allowing plaintiffs to proceed on unverifiable affidavits of class members. This would improperly deny Bayer the opportunity to challenge class membership. Id. “This is especially true where the named plaintiff's deposition testimony suggested that individuals will have difficulty recalling their purchases of WeightSmart.” Id.

Carrera contains an important discussion regarding the due process rights of defendants in class actions. The court explained that a “defendant in a class action has a due process right to raise individual challenges and defenses to claims, and a class action cannot be certified in a way that eviscerates this right or masks individual issues.” Id. at 307. The court stressed that a “defendant has a similar, if not the same, due process right to challenge the proof used to demonstrate class membership as it does to challenge the elements of a plaintiff's claim,” and that “[a]scertainability provides due process by requiring that a defendant be able to test the reliability of the evidence submitted to prove class membership.” Id.

Decisions in the Third Circuit and elsewhere have emphasized the feasibility requirement for ascertaining class members under Rule 23(b)(3). In these decisions, courts have limited the viability of class actions where class members cannot be readily identified, as is the case when class representatives bring an action on behalf of class members regarding unsubstantiated purchase of the product allegedly at issue. See, e.g., In re Clorox Consumer Litig., 301 F.R.D. 436, 440-442 (N.D. Cal. 2014); Langendorf v. SkinnyGirl Cocktails, LLC , 306 F.R.D. 574, 578-579 (N.D. Ill. 2014).

For example, relying on a trio of Third Circuit precedent, Stewart v. Beam Global Spirits & Wine, Inc., 2014 WL 2920806, at *14 (D.N.J. June 27, 2014), denied plaintiffs' motion for class certification. Plaintiffs' proposal for identifying members of the putative class ' submission of affidavits ' did not satisfy Rule 23's ascertainability requirement. And, when plaintiffs made a second attempt to clear the ascertainability hurdle in 2015, the court similarly declined to certify the class. Bello v. Beam Global Spirits & Wine Inc., 2015 WL 3613723, at *4 (D.N.J. June 8, 2015). Again, plaintiffs failed to demonstrate an administratively feasible method of determining who belongs to the proposed consumer class of purchasers of SkinnyGirl products. Id. at *6-7. Moreover, as in Carrera, the named plaintiffs here “have demonstrated difficulty remembering the details of their purchases.” Id. at *9.

Other Jurisdictions

Other courts have relied on the Third Circuit's reasoning. In Karhu v. Vital Pharmaceuticals, Inc., 2014 WL 815253, at *3 (S.D. Fla. Mar. 3, 2014), aff'd, 2015 WL 3560722 (11th Cir. June 9, 2015), the Southern District of Florida, citing Carrera, denied the plaintiff's motion for class certification because the plaintiff failed to suggest any practical means of verifying class membership. The court would not allow absent class members to identify themselves through the submission of affidavits, holding that “accepting affidavits ' of purchases without verification would deprive [defendant] of its due process rights to challenge the claims of each putative class member.” Id .; see also Donaca v. Dish Network, LLC , 303 F.R.D. 390, 396-397 (D. Colo. 2014) (relying on Carrera in holding that the class of persons who received robocalls was not ascertainable).

In the Northern District of California, while many courts still refuse to impose the stringent Carrera standard (see below), many have found its objective records requirement to be persuasive authority, and have denied certification when there are multiple product combinations at issue. See, e.g., Kosta v. Del Monte Foods, Inc., 2015 WL 4593175, at *8-10 (N.D. Cal. July 30, 2015) (denying class certification because too many label and product combinations prevented accurate purchase recall needed to identify class members); Sethavanish v. ZonePerfect Nutrition Co., 2014 WL 580696, at *5-6 (N.D. Cal. Feb. 13, 2014) (denying class certification of a purported nationwide class of purchasers of nutrition bars labeled “all natural”; plaintiff had not presented any reasonable method for identifying class members or ruling out fraudulent claims. “Even though there is no requirement that a named plaintiff identify all class members at the time of certification, that does not mean that a named plaintiff need not present some method of identifying absent class members to prevail on a motion for class certification”); Astiana v. Ben & Jerry's Homemade, Inc., 2014 WL 60097, at *3 (N.D. Cal. Jan. 7, 2014) (class certification of “all natural” label claims on ice cream products containing alkalized cocoa was rejected because only a fraction of the ice cream contained the ingredient; ascertainability also implicated because plaintiffs could not separate class members who purchased the product with a different label or different ingredients; further, the court agreed with defendant's argument that plaintiffs were required to introduce evidence that customers paid a premium for “all natural” ice cream and that a class should not be certified because plaintiff could not prove that consumers paid more for ice cream with this label on a nationwide basis).

The Kosta court explained: “While the lack of proof of purchase may be a factor, it is not dispositive ' here, the court weighs more heavily the variations in the product included in the proposed class which make it much more difficult,” apparently agreeing with the defendant that to allow the case to go forward would require class members to pass a “memory test” to identify which product, flavor and label variation they bought. Id. at *9-10. Perhaps the Kosta court was emboldened because plaintiffs also failed to show that common questions of law and fact supported class certification and failed to offer evidence of the materiality of the purportedly false statements were manageable on a classwide basis. Id. at *10-11.

Circuit Split Emerges over Ascertainability

Although many courts have looked to Carrera for guidance on methodology surrounding ascertainability, as indicated above, federal courts in California have refused to adopt the strict approach of the Third Circuit. Indeed, in Bruton v. Gerber Products Company, 2014 WL 2869885, at *5 (N.D. Cal. June 23, 2014), the district court declined to extend Carrera, stating that “[i]n this Circuit, it is enough that the class definition describes a set of common characteristics sufficient to allow a prospective plaintiff to identify himself or herself as having a right to recover based on the description”), citing McCrary v. The Elations Co., LLC, 2014 WL 1779243, at *8 (C.D. Cal. Jan. 13, 2014); see also Rahman v. Mott's LLP, 2014 WL 6815779, at *4 (N.D. Cal. Dec. 3, 2014); Lilly v. Jamba Juice Co., 2014 WL 4652283, at *4 (N.D. Cal. Sept. 18, 2014) (“Adopting the Carrera approach would have significant negative ramifications for the ability to obtain redress for consumer injuries ' it is precisely injuries in circumstances like these, where the injury to any individual consumer is small, but the cumulative injury to consumers as a group is substantial, that the class action mechanism provides one of its most important social benefits.”); Forcellati v. Hyland's, Inc., 2014 WL 1410264, at *5 (C.D. Cal. April 9, 2014) (“Given that facilitating small claims is '[t]he policy at the very core of the class action mechanism,' we decline to follow Carrera.”).

Moreover, the Ninth Circuit denied defendant's petition for permission to review a district court ruling that allowed almond milk purchasers to proceed on a class basis with their claims alleging that the products' labels stating the milk was “all natural” and included “evaporated cane juice” were misleading. Blue Diamond Growers v. Werdebaugh, Case No. 14-80084 (9th Cir. Aug. 22, 2014) (interlocutory review denied). Although Blue Diamond argued in its petition for review that the district court's decision “exacerbates a split of authority among district courts in this circuit over the threshold showing that putative class representatives must make to demonstrate an ascertainable class in food mislabeling cases,” and that Dr. Oral Capps' regression analysis for calculating damages fell short under Comcast Corp. v. Behrend , 133 S. Ct. 1426 (2013), the U.S. Court of Appeals for the Ninth Circuit declined to review the district court's ruling.

Then, a split panel of the U.S. Court of Appeals for the First Circuit, in In re Nexium Antitrust Litigation, 777 F.3d 9, 25 (1st Cir. 2015), decided that a class action may be certified when it includes a de minimis number of uninjured class members. The dissenting opinion points out that the majority glances over Carrera and other decisional law and breaks new ground that permits the use of affidavits and/or declarations to determine injured versus uninjured class members. Id. at 33-34.

More recently, in Karhu v. Vital Pharmaceuticals, Inc., 2015 WL 3560722, at *5 (11th Cir. June 9, 2015), the Eleventh Circuit held that third-party sales records could be used as objective proof to show the identity of class members. The court explained, however, that certification was properly denied because the plaintiff failed to raise the argument in his certification motion to the district court. Id.

And then, in late July 2015, the Seventh Circuit rejected outright the Third Circuit's ascertainability standard that requires plaintiffs in consumer class suits to provide a reliable and administratively feasible way to identify class members at the certification stage. Mullins v. Direct Digital, LLC, 2015 WL 4546159, at *7 (7th Cir. July 28, 2015). (And, with Jones v. ConAgra Foods Inc., Case No. 14-16327, the Ninth Circuit will most likely be the next Court of Appeals to weigh in on the issue.) Mullins held that if courts thoroughly apply Rule 23, there is no need for a heightened requirement or methodology for identifying class members.

The Seventh Circuit Approach

In Mullins, a case involving class status for a group of dietary supplement buyers, the Seventh Circuit cautioned that “district courts should continue to insist that the class definition satisfy the established meaning of ascertainability by defining classes clearly and with objective criteria.” Id.'at *16.

If a class is ascertainable in this sense, courts should not decline certification merely because the plaintiff's proposed method for identifying class members relies on affidavits.” Id. Calling Carrera's approach the “high-water mark of its developing ascertainability doctrine,” the Seventh Circuit explained that the approach “goes much further than the established meaning of ascertainability and in our view misreads Rule 23. Id. at *7.

In affirming class certification, the Seventh Circuit explained that the class definition is not vague because it is not based on subjective criteria and does not create a “fail-safe” class. Id. at *5. The court focused on the class definition itself rather than on whether it would be difficult to identify certain members of the class, explaining that policy concerns regarding identification of class members could be adequately addressed by the Rule 23(b)(3) “superiority” requirement (i.e., that class treatment is “superior” to other methods of handling the case). Id. at *7-8.

It may be important to note that after Carrera, the Third Circuit, in a case involving consumers who raised privacy claims with regard to their computers, ruled on ascertainability in a way that makes one wonder if it, too, feels Carrera was too strict. Byrd v. Aaron's Inc. , 784 F.3d 154, 169 (3d Cir. 2015), ruled that the proposed classes of owners and lessees were ascertainable because there were “objective records” that could “readily identify” the class members, i.e. , records to identify the computers on which spyware was activated and the identity of customers who bought or leased the computers. Rest assured that should the issue be heard by the U.S. Supreme Court, proponents of the Seventh Circuit approach will raise this rift in the Third Circuit as further support for a more lenient standard.

Conclusion

Courts across the country are paying increased attention to “ascertainability” of class members. The First and Seventh Circuits (and a sprinkling of Ninth Circuit precedent) have created and endorsed a consumer-friendly method for identifying class members that has been rejected by other federal courts. Companies in the food and beverage industries, where consumers do not typically retain receipts, may find this circuit split to be especially important and will likely be on the lookout for a petition for a writ of certiorari to the United States Supreme Court.

Vivian Quinn, a member of this newsletter's Board of Editors, is a partner and Tracey Ehlers is a senior associate at Nixon Peabody LLP.