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Will Ascertainability Split Finally Be Resolved?
In the context of civil class action litigation, “ascertainability” includes the identification of individuals who qualify for class membership. Although not an explicit Rule 23 requirement, since the U.S. Court of Appeals for the Third Circuit's decision in Carrera v. Bayer Corporation, 727 F.3d 300 (3d Cir. 2013), federal appeals courts have been divided over the significance and scope of the ascertainability requirement, particularly in litigation involving low-cost consumer goods as consumers may not retain receipts for such items to document proof of purchase.
Despite requests for change, the Judicial Conference Advisory Committee on Civil Rules declined to include ascertainability in its proposed changes to Rule 23. See “Proposed Amendments to the Federal Rules of Appellate, Bankruptcy, Civil, and Criminal Procedure” (Aug. 12, 2016). In addition, the U.S. Supreme Court recently rejected two petitions for certiorari earlier this year that would have addressed ascertainability. See Mullins v. Direct Digital, LLC, 136 S. Ct. 1161 (Feb. 29, 2016) and Rikos v. Procter & Gamble Co., 136 S. Ct. 1493 (Mar. 28, 2016). Food labeling cases pending before the U.S. Court of Appeals for the Ninth Circuit, however, could potentially provide the Supreme Court with another opportunity to settle the circuit split.
Third Circuit's Stringent Interpretation of Ascertainability
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