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Ascertaining Potential Plaintiffs

BY Vivian Quinn
November 30, 2015

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.

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