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Publication Date

7-2017

Document Type

Comment

Abstract

This Comment seeks to address the growing circuit split on the ascertainability requirement of class action lawsuits. The split centers around what Rule 23 of the Federal Rules of Civil Procedure' explicitly states are the requirements for class certification and what some courts have read into Rule 23. Under the high standard, creating a plan or proposing a method with which to identify purported class members is not enough to satisfy the ascertainability requirement. Instead, a class must show that evidentiary means exist and are readily obtainable to support the proposed method of identifying the case. Conversely, under the low standard, the implicit requirement of ascertainability focuses on the adequacy of the class definition and not whether, using the class definition, identifying particular members of the class would be difficult. The majority of case law examined in this Comment focuses on Rule 23(b)(3) class action lawsuits, primarily consumer class action lawsuits involving small-value claims. Rule 23(b)(3) cases are central in the circuit split over the ascertainability doctrine due to the challenge of identifying class members in cases where plaintiffs likely do not have evidence to support their status as class members, and defendants do not have adequate records to identify potential class members.

Though a narrow issue, the split falls into the changing landscape of federal class action lawsuits. In four recent cases with five-justice majorities, Justice Scalia wrote for a divided Court that upheld contractual waivers of class arbitration, questioned class-wide damages models, and required a strict interpretation of what constitutes common questions of law and fact sufficient to maintain a class action under Rule 23 of the Federal Rules of Civil Procedure. However, since Justice Scalia's death in early 2016, the Court is operating at less than full capacity for the first time since 2010. While turnover in the Court is natural, a tumultuous election year in 2016 caused the position to remain vacant for an extended period of time. At the end of last year's term, the Court likely declined certiorari in Mullins v. Direct Digital, LLC to avoid a split decision.

This Comment explores the issues and outcomes of recent cases involving the meaning of the ascertainability requirement, including the current circuit split in the area, as well as the possibility of future litigation in the Supreme Court of the United States. Part II discusses generally the history of class actions in the United States. Part III explores the different approaches to the ascertainability requirement taken by the federal circuit courts. Part IV addresses the various policy implications of a heightened ascertainability requirement, provides reasoning for the validity of the lower standard, and examines litigation that may find its way to the Supreme Court.

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