Ascertainability has been a hot topic in class action appeals recently. The Third Circuit recently clarified its ascertainability standard (see my April 20 blog post). The committee considering potential Rule 23 amendments is exploring adding an explicit ascertainability requirement to the rule. (My fellow class action blogger Paul Karlsgodt just posted a great summary of the latest on those deliberations.) For now, ascertainability remains an implicit requirement that the proposed class members must be identifiable – for purposes of notice, for example, and determining who is bound by any judgment.

Courts have debated the precise contours of this standard. The Second Circuit recently weighed in, holding that for a class to be ascertainable it must: (1) be defined by objective criteria; (2) be administratively feasible; and (3) not require mini-hearings to determine class membership. This is similar to how most circuits have defined ascertainability, although some courts have suggested that objective criteria alone might be sufficient.

In Brecher v. Republic of Argentina, No. 14-4385 (2d Cir. Sept. 16, 2015), the district court certified a class of bondholders in a case involving Argentina’s defaulting on sovereign debt. As initially certified, the class was limited to persons who continuously held a beneficial interest in a particular bond series for a certain time period. In a prior decision, the Second Circuit held that the district court’s method of calculating damages for that class was inflated, and remanded the case. The district court then modified the class definition to expand the class to include all holders of beneficial interests in the bond series, without any time limitation. This was intended to make the damages calculation easier. But the Second Circuit allowed an appeal under Rule 23(f) on the new class definition.

The Second Circuit held that the new class definition failed the ascertainability test. The court explained that “[a] class is ascertainable when defined by objective criteria that are administratively feasible and when identifying its members would not require a mini-hearing on the merits of each case.” Slip op. at 5. Objective criteria alone are not sufficient if they “do not establish the definite boundaries of a readily identifiable class.” Id. at 6. The court explained that, due to the manner in which the Argentinian bonds are identified and traded on the secondary market, it is “practically impossible to trace purchases and sales of a particular beneficial interest,” making the proposed class not ascertainable. Id. at 7-8. “Even if there were a method by which the beneficial interests could be traced, determining class membership would require the kind of individualized mini-hearings that run contrary to the principle of ascertainability.” Id. at 8-9.

In insurance cases, ascertainability is often a strong argument against class certification. Often plaintiffs propose to define a class in a manner that requires an individual file-by-file review of claim or underwriting files to determine whether the potential claimant fits the class definition. And even those files may be unclear regarding the relevant criteria, thus requiring mini-hearings. If plaintiffs broaden the class in an attempt to avoid those issues, that can often mean that the class includes many people who have no potential entitlement to any relief and no standing to sue, leading to another series of defenses to class certification.

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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.