Ascertainability is an implied requirement for class certification, not expressly addressed in Fed. R. Civ. P. 23. While there are different formulations of the requirement, in essence it requires that there be an adequate method for ascertaining who the class members (as defined by the class definition) are, without conducting trials for that purpose. Ascertainability of the class is essential for the court to give notice to the class, determine who is bound by a final judgment, etc.

The Third Circuit has been a hotbed of litigation over this requirement following its decisions in Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013) and Marcus v. BMW of North America, LLC, 687 F.3d 583 (3d Cir. 2012). Some commentators have suggested that the Third Circuit’s standard is so stringent that it completely precludes certification of any class involving a small consumer product for which consumers rarely retain a receipt or other proof of purchase. The Third Circuit recently clarified its standard.

In Byrd v. Aaron’s Inc., No. 14-3050, 2015 U.S. App. LEXIS 6190 (3d Cir. Apr. 16, 2015), the plaintiffs rented computers from the defendants, which allegedly used spyware to secretly record screenshots, keystrokes and webcam images, without the renters having any idea that their activities were being recorded. All kinds of personal information was allegedly recorded, in a scenario reminiscent of George Orwell’s book 1984, as the court noted. The plaintiffs alleged that this violated the Electronic Communications Privacy Act of 1986.

The district court denied class certification on ascertainability grounds. It found the proposed class underinclusive, overly broad, and vague to the extent it included “household members” of those who rented computers.

The Third Circuit reversed, finding that ascertainability was satisfied, and remanded for further consideration of the other class certification requirements. Here are some key points from the opinion:

  • Ascertainability requires that “(1) the class is ‘defined with reference to objective criteria’; and (2) there is ‘a reliable and administratively feasible mechanism for determining whether putative class members fall within the class definition.” Id. at *15. “If class members are impossible to identify without extensive and individualized fact-finding or ‘mini-trials,’ then a class action is appropriate.” Id. at *16.

 

  • The class members need not be actually identified at the class certification stage, but there must be a sufficient evidentiary showing demonstrating that class members can be identified. Id. at *18.

 

  • Although ascertainability is related to the class definition, it is a separate requirement from the requirement that the class be adequately defined for purposes of a class certification order, and the two requirements should not be conflated. Id. at *22-23.

 

  • There is no requirement that a class include everyone who was harmed because that might require a fail-safe class, and “[i]ndividuals who are injured by a defendant but are excluded from a class are simply not bound by the outcome of that particular litigation.” Id. at *25-26.

 

  • Potential overbreadth of the class is an issue that should be addressed separately from ascertainability. A class that is defined broadly but can be readily identified through objective records is ascertainable. Whether members of the putative class lack standing is a separate issue that the court declined to address before the district court had done so. Id. at *29-31.

 

  • The inclusion of “household members” of persons who rented computers in the definition of the class did not render the class not ascertainable. Public records could be used to identify persons who resided in the same house or apartment as the renter. Id. at *31-32.

Judge Rendell issued a concurring opinion, explaining that she would eliminate the second prong of the Third Circuit’s ascertainability test. She would not require that there be an “administratively feasible” mechanism for determining who the class members are because, in her view, this requirement eliminates too many “small-value” consumer class actions. Id. at *51-54 (Rendell, J., dissenting).

While this decision likely will be viewed as an effort by the court to narrow, to some degree, the Third Circuit’s defendant-friendly ascertainability standard, ascertainability remains a key basis on which defendants will be able to defeat class certification in many cases. One way to develop an evidentiary record for this is to find examples of potential putative class members with respect to whom a mini-trial would be required to determine whether or not they fall within the class. To the extent you can show that these mini-trials would be required in a substantial number of cases, that makes the defendant’s argument even stronger.

In insurance claim-related class actions, the proposed class is frequently defined in a manner in which an individual claim file review would be required to identify class members, and even that review would not squarely answer the question of class membership in many instances because the file does not clearly answer the relevant questions, and may contain incorrect information. Ascertainability can be a key ground on which to defend against class certification in insurance cases.

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Photo of Wystan Ackerman Wystan Ackerman

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you…

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you have something to say.  For those looking for my detailed law firm bio, click here.  If you want a more light-hearted and hopefully more interesting summary, read on:

People often ask about my unusual first name, Wystan.  It’s pronounced WISS-ten.  It’s not Winston.  There is no “n” in the middle.  It comes from my father’s favorite poet, W.H. (Wystan Hugh) Auden.  I’ve grown to like the fact that because my name is unusual people tend to remember it better, even if they don’t pronounce it right (and there is no need for anyone to use my last name because I’m always the only Wystan).

I grew up in Deep River, Connecticut, a small town on the west side of the Connecticut River in the south central part of the state.  I’ve always had strong interests in history, politics and baseball.  My heroes growing up were Abraham Lincoln and Wade Boggs (at that time the third baseman for the Boston Red Sox).  I think it was my early fascination with Lincoln that drove me to practice law.  I went to high school at The Williams School in New London, Connecticut, where I edited the school newspaper, played baseball, and was primarily responsible for the installation of a flag pole near the school entrance (it seemed like every other school had one but until my class raised the money and bought one at my urging, Williams had no flag pole).  As a high school senior, my interest in history and politics led me to score high enough on a test of those subjects to be chosen as one of Connecticut’s two delegates to the U.S. Senate Youth Program, which further solidified my interest in law and government.  One of my mentors at Williams was of the view that there were far too many lawyers and I should find something more useful to do, but if I really had to be a lawyer there was always room for one more.  I eventually decided to be that “one more.”  I went on to Bowdoin College, where I wrote for the Bowdoin Orient and majored in government, but took a lot of math classes because I found college math interesting and challenging.  I then went to Columbia Law School, where I was lucky enough to be selected as one of the minions who spent their time fastidiously cite-checking and Blue booking hundred-plus-page articles in the Columbia Law Review.  I also interned in the chambers of then-Judge Sonia Sotomayor when she was a relatively new judge on the Second Circuit, my only connection to someone who now has one-ninth of the last word on what constitutes the law of our land.  I graduated from Columbia in 2001, then worked at Skadden Arps in Boston before returning to Connecticut and joining Robinson+Cole, one of the largest Connecticut-based law firms.  At the end of 2008, I was elected a partner at Robinson+Cole.

I’ve worked on class actions since the start of my career at Skadden.  Being in the insurance capital of Hartford, we have a national insurance litigation practice and I was fortunate to have the opportunity to work on some prominent class actions arising from the 2004 hurricanes in Florida and later Hurricane Katrina, including cases involving the applicability of the flood exclusion, statutes known as valued policy laws, and various other issues.  My interest and experience in class actions gradually led me to focus on that area.

In Connecticut courts I’ve defended various kinds of class actions that go beyond insurance, including cases involving products liability, securities, financial services and consumer contracts.

My insurance class action practice usually takes me outside of Connecticut.  I’ve had the pleasure of working on cases in various federal and state courts and collaborating with great lawyers across the country.  While class actions are an increasingly large part of my practice, I don’t do exclusively class action work.  The rest of my practice involves litigating insurance coverage cases, often at the appellate level.  That also frequently takes me outside of Connecticut.  A highlight of my career thus far was working on Standard Fire Ins. Co. v. Knowles, the U.S. Supreme Court’s first Class Action Fairness Act case.  I was Counsel of Record for Standard Fire on the cert petition, and had the pleasure of working with Ted Boutrous on the merits briefing and oral argument.

I started this blog because writing is one of my favorite things to do and I enjoy following developments in class action law, writing about them and engaging in discussion with others who have an in interest in this area.  It’s a welcome break from day-to-day practice, keeps me current, broadens my network and results in some new business.

When I’m not at my desk or flying around the country trying to save insurance companies from the plaintiffs’ bar, or attending a conference on class actions or insurance litigation (for more on those, see the Seminars/Programs page of this blog), I often can be found playing or reading with my young daughter, helping my wife with her real estate and mortgage businesses, reading a book about history or politics, or watching the Boston Red Sox (I managed to find bleacher seats for Game 2 of the 2004 World Series when Curt Schilling pitched with the bloody sock).  When the weather is good I also love to take the ferry to Block Island, Rhode Island and ride a bike or walk the trails there. If you go, I highly recommend the Clay Head Trail.