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More Appellate Courts Reject the Third Circuit's "Ascertainability" DoctrineBruce D. Greenberg

In 2015, my colleague Kyle A. Shamberg wrote this post about the Third Circuit Court of Appeals’s doctrine of “ascertainability.” That doctrine prevents the certification of a class unless all members of that class can be precisely identified. In consumer cases, involving purchases such as aspirin or weight-loss pills, where consumers do not register their purchases, it is often impossible to identify all the purchasers. The Third Circuit’s approach mistakenly blocks class certification in such cases, meaning (as a practical matter) that no one can recover for a defendant seller’s wrongdoing.

The prior post discussed an opinion of the Seventh Circuit Court of Appeals that rejected the Third Circuit’s view of ascertainability. Last week, in a case called In re Petrobras Securities, the Second Circuit Court of Appeals likewise declined to follow the Third Circuit in this regard. Instead, the Second Circuit sided with what it called a “growing consensus” of the Circuit Courts of Appeal (the Sixth, Eighth, and Ninth Circuits) in finding that any ascertainability requirement is more limited than the Third Circuit’s interpretation of it.

Federal Rule of Civil Procedure 23 contains a number of requirements for class certification, but “ascertainability” is not among them. The Second Circuit observed that, despite that, “[m]ost courts of appeals have recognized that Rule 23 contains an implicit threshold requirement that the members of a proposed class be readily identifiable,” which those courts label as “ascertainability.” But courts give that term different meanings, as the Second Circuit observed.

The Third Circuit goes the furthest, ruling that in order for a class to be certified, the plaintiffs “must not only show that the class is defined with reference to objective criteria, but also that there is a reliable and administratively feasible mechanism for determining whether putative class members fall within the class definition.” The Third Circuit has rejected class member affidavits as a reliable and feasible mechanism, dooming some cases.

In Petrobras, the Second Circuit “decline[d] to adopt a heightened ascertainability theory that requires a showing of administrative feasibility at the class certification stage,” as the Third Circuit has done. The court in Petrobras concluded that “a freestanding administrative feasibility requirement is n either compelled by precedent nor consistent with Rule 23.” Instead of the misguided Third Circuit viewpoint, the Second Circuit stated that its ascertainability requirement is that “a class is ascertainable if it is defined using objective criteria that establish a membership with definite boundaries.” Amplifying that, the court said that “a class must be sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member; a class must be ‘defined by objective criteria’ so that it will not be necessary to hold a mini-hearing on the merits of each case.”

The Second Circuit labeled this as a “modest threshold requirement” that will “only preclude certification if a proposed class definition is indeterminate in some fundamental way.” That test for ascertainability was satisfied in Petrobras. However, other considerations involving predominance led to a reversal of the class that the District Court in that case had certified.

As the Second Circuit noted, a dissent in one of the most recent Third Circuit ascertainability cases urged that that court “retreat from [its] heightened ascertainability requirement” by eliminating the administrative feasibility prong. With five other Circuits (as well as New Jersey’s Appellate Division) aligned against the Third Circuit’s view, all of them having issued compellingly reasoned opinions rejecting the Third Circuit’s approach, it is time for the Third Circuit to abandon its view of ascertainability.