Although the class-action device has been prevalent in the federal courts for decades, there has been a recent surge in case law developing around the requirements for class certification. One of the elements receiving new attention is the requirement of “ascertainability”—essentially, the feasibility and reliability of identifying the potential class members.


The Third Circuit’s recent decision not to reconsider en banc its ruling in Carrera v. Bayer, 727 F.3d 300 (3d Cir. Aug. 21, 2013), has further clarified and significantly strengthened the standard of “ascertainability” necessary for a class action to be certified. The decision has the potential to curtail consumer class-action litigation of dubious value, at least in the Third Circuit, and also underscores the importance of expanded access to interlocutory appeal of class certification decisions.


Ascertainability is a longstanding requirement for class actions. Some courts find an implicit requirement in FRCP 23. In re Fosamax Product Liability Litigation, 24 F.R.D. 389, 395 (S.D.N.Y. 2008). Others have suggested that it derives in part from Rule 23(b)(3) requirements that class actions must meet the requirements of predominance and superiority—in other words, the common questions of law and fact must predominate; and the class-action device must be a superior method for adjudicating the case. See Marcus v. BMW of North America, 687 F.3d 583, 593 (3d Cir. 2012).


In evaluating these requirements, the court would consider whether the class is currently and readily ascertainable based on objective criteria. A class based on people who “believe” they had been discriminated against, for example, has been deemed insufficiently objective. Chiang v. Veneman, 385 F.3d 256, 271 (3d Cir. 2004). And a class in which defining members require individualized fact-finding “mini-trials” has been found to lack the efficiencies expected of class actions. See Clavell v. Midland Funding, 2011 WL 2462046 (E.D.Pa. June 21, 2011).


A new focus on ascertainability began in 2012 with Marcus v. BMW, where the Third Circuit discussed the requirements and rationale of ascertainability at length for the first time. The plaintiffs in Marcus argued that Bridgestone run-flat tires (RFT) were defective and prone to fail at a higher rate than conventional tires. The proposed class was to include all customers who had purchased BMWs equipped with RFTs in specified model years who had suffered a tire failure requiring replacement.


BMW did not have a parts manifest that could accurately indicate how many cars were outfitted with the RFTs, and had no accurate record of how many of the customers with RFTs had encountered flat tires or other problems. The plaintiffs therefore proposed that the class be ascertained by affidavits by individual claimants.


The Marcus court noted that the proposed class “raised serious ascertainability issues” and discussed the objectives of the ascertainability requirement: the interest in efficiencies expected of class actions; the protection of absent class members by ensuring the best notice possible; and the protection of defendants by ensuring class members are identifiable and thereby bound by the final judgment. However, it also went further to caution “against approving a method that would amount to no more than ascertaining by potential class members’ say so,” suggesting that “forcing defendants to accept a mere affidavit signed by potential class members without further indicia of reliability, would have serious due process implications.”


Notably, even as the decision in Marcus was pending, the PLAC (Product Liability Advisory Council) filed an amicus brief by John Beisner and Jessica Miller in the Carrera case making the same due process arguments on the ascertainability of the proposed class. Even though the amicus was thus unable to invoke the Marcus precedent, their due process analysis was largely embraced by the Third Circuit Carrera majority opinion.


The Carrera court’s adoption of the Marcus/PLAC due process analysis significantly advanced the case law on the due process implications of ascertainability in a way that is especially striking given the facts of the case.


In Carrera, the plaintiffs alleged that defendant Bayer had marketed its WeightSmart supplement in a misleading fashion, and claimed a violation of the Florida consumer protection statute on behalf of all consumers who had purchased the product in the state of Florida. Because the amount of the product sold in the state was a known quantity, the plaintiffs alleged that the overall liability was fixed—the ascertainability challenge was simply in distributing the damages among class members.


The plaintiffs argued that ascertaining the class through a combination of CVS loyalty card records and online sales records, supplemented by individual affidavits, presented no significant due process considerations. The defendant had no legitimate due process interest in challenging the class, they argued, since the claimants were unlikely to file false affidavits for such a small potential recovery. Furthermore, they argued, if the overall damages could be determined based on total product sold, any false affidavits in excess of that total value would not cost the defendants any more, but would merely dilute the recovery of other class members.


Indeed, the district court did not even mention due process, dismissing concerns over ascertainability as questions of mere “manageability” and suggesting that “a simple statement or affidavit may be sufficient where claims are small or are not amenable to ready verification.”


The appellate panel, however, focused on the defendant’s due process rights to challenge the proof used to demonstrate the class, and approached the class action as a procedural device for efficient aggregation of individual claims, rather than a means of extracting aggregate damages from a particular defendant. “If this were an individual claim, a defendant would have the 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.”


The court’s analysis emphasized that the defendant’s due process interests recognized in Marcus do not hinge on the more fact-intensive inquiry or the relatively high-dollar claim value which were at issue in that case. Regardless of how likely someone might be to falsify a claim, the court determined that “a core concern of ascertainability” was that “a defendant must be able to challenge class membership.”


Furthermore, even if the defendant’s overall liability can be determined independent of determining class membership, the defendant “retains an interest in ensuring it pays only legitimate claims”—in part to protect absent class members against the prospect of dilution of recovery due to fraudulent claims, and also to protect the defendant against class members challenging the adequacy of the named plaintiff’s representation.


In short, according to the Carrera decision, in order to meet the standard for ascertainability, a plaintiff must demonstrate that his purported method for ascertaining class members is reliable and administratively feasible, and permits a defendant to challenge the evidence to prove class membership.


The Third Circuit’s recent denial of the plaintiffs’ motion for a rehearing en banc has confirmed that Carrera is the law of the land, at least in the Third Circuit. The decision has the potential to curtail consumer class-action litigation in cases where the case would normally be ascertained via affidavit. The ruling also underscores the importance of expanded access to interlocutory appeal of class-certification decisions.


The court has recognized for the first time that the ascertainability inquiry involves significant due process considerations, even for low dollar-value claims. However, Carrera does not completely close the door to ascertainability via customer loyalty cards and the like. The court held open the possibility that retailer records could be an effective method of proving class membership, but because the plaintiffs in Carrera presented no evidence that even a single purchaser of the product could be identified via loyalty card records, it is not clear what evidence would be sufficient. Look for future cases exploring this question, particularly with regard to situations where consumers are unlikely to have receipts documenting their purchase.


The fact that case law is developing around class certification is itself a very good thing. Bringing greater clarity and predictability to what merits class certification is beneficial to plaintiffs, defendants and judges far beyond those involved in the case at hand. It is striking that the federal courts did not address the standards for ascertainability for class actions in detail until recently.


Only time will tell if the ruling in Carrera will be expanded to other jurisdictions, but in the meantime, the Third Circuit will be a fertile ground for exploring the boundaries of ascertainability.



Kass is chief counsel at the New Jersey Civil Justice Institute in Trenton.


Reprinted with permission from the June 30, 2014 issue of the New Jersey Law Journal. © 2014 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.


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