Over the past several years, there has been a deepening circuit split over a key issue in class action litigation: whether a class must be “ascertainable” before it can be certified. The principle involved is reasonably straightforward — before a court certifies a class, there should be some method to determine the actual class members.

The Circuit Courts of Appeal remain divided over this requirement’s applicability, however, and recent developments indicate that the Supreme Court is not yet ready to resolve the issue. But, as the decisions highlighted here indicate, in those circuits where the requirement still applies, it remains an important tool in defeating class certification. Therefore, so long as certification is denied on these grounds, the effect of the circuit split will continue to be felt — thus leaving open the possibility of renewed Supreme Court interest down the road.

The disparate approaches to ascertainability are exemplified in two decisions: Carrera v. Bayer from the Third Circuit, and more recently, Briseno v. Conagra from the Ninth Circuit.

Read the full article here.

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Charles Sipos Charles Sipos

Charles Sipos is a class action litigator with more than two decades of experience focusing on technology, consumer goods, and privacy issues.

He litigates class actions nationwide and has appeared and argued on behalf of defendants in federal courts, including in California, Colorado…

Charles Sipos is a class action litigator with more than two decades of experience focusing on technology, consumer goods, and privacy issues.

He litigates class actions nationwide and has appeared and argued on behalf of defendants in federal courts, including in California, Colorado, the District of Columbia, Florida, Illinois, New Jersey, New York, Massachusetts, Minnesota, Oregon, Washington, and the U.S. Courts of Appeals for the Second, Seventh, Ninth, and Eleventh Circuits. Charles’ litigation successes have included dismissals and summary judgment based on lack of Article III injury, statutory standing under consumer protection laws, federal preemption, primary jurisdiction, failure to allege damages, First Amendment protection for commercial speech, the “reasonable consumer” standard, and related defenses.