The “ascertainability” requirement for class certification is a crucial safeguard for both defendants and absent class members. There is some debate about its origin: some courts have held that it is implicit in Rule 23 that class members must be readily identifiable; others find ascertainability to be rooted in Rule 23(a)(1)’s numerosity mandate or Rule 23(b)(3)’s requirement that a class action be superior to other methods for resolving the controversy. Either way, courts agree that a class is ascertainable only if the class definition is sufficiently definite to make it administratively feasible for the court to determine by reference to objective criteria whether a particular person is a member of the putative class.

In two recent opinions—Hayes v. Wal-Mart Stores, Inc. (pdf), 2013 WL 3957757 (3d Cir. Aug. 2, 2013), and Carrera v. Bayer Corp., 2013 WL 4437225 (3d Cir. Aug. 21, 2013)—the Third Circuit vacated class certification orders because the plaintiffs hadn’t met their burden of proving that class members were ascertainable. These decisions are a goldmine for class action defendants: They provide great examples of the ascertainability requirement in action.

Hayes v. Wal-Mart Stores, Inc.

In Hayes, the plaintiff had purchased what he alleged were worthless extended warranties for certain merchandise sold “as is” and therefore ineligible for extended warranties. (The defendant’s extended warranties covered products sold “as is” only if they were covered by a full manufacturer’s warranty or were being sold simply to clear out inventory; floor models and previously returned goods sold as clearance items weren’t eligible.) The plaintiff asserted that marketing extended warranty service plans to buyers of “as is” products violated New Jersey’s Consumer Fraud Act and various common-law doctrines. The district court certified a class of New Jersey consumers who purchased warranties dating back to January 26, 2004 to cover “as is” products. Excluded from the class were purchasers whose “as is” products were covered by full manufacturer warranties or were last-one items, as well as consumers whose extended warranties had been honored or who had already been reimbursed for the cost of the warranty.

The problem with this class definition is that it would be impossible—short of mini-trials—to determine whether a particular consumer fell within the class. As the Third Circuit explained in vacating the certification order, the plaintiff’s “petition for class certification will founder if the only proof of class membership is the say-so of putative class members or if ascertaining the class requires extensive and individualized fact-finding.”

In doing so, the Third Circuit discussed its explanation of ascertainability in its decision last year in Marcus v. BMW of North America, LLC, 687 F.3d 583 (3d Cir. 2012):

[The District Court] must resolve the critical issue of whether the defendants’ records can ascertain class members and, if not, whether there is a reliable, administratively feasible alternative. We caution, however, against approving a method that would amount to no more than ascertaining by potential class’ members say so. For example, simply having potential class members submit affidavits that their Bridgestone RFTs have gone flat and been replaced may not be “proper or just.” BMW and Bridgestone will be able to cross-examine [the named plaintiff] at trial about whether and why his tires “have gone flat and been replaced.” Forcing BMW and Bridgestone to accept as true absent persons’ declarations that they are members of the class, without further indicia of reliability, would have serious due process implications.

The proposed class in Hayes suffered from the same defects.

Another problem with the class certification in Hayes, the Third Circuit explained, is that there was no assurance that enough consumers fell within the class definition to satisfy Rule 23(a)(1)’s numerosity requirement. The defendant had records of 3,500 transactions of extended warranties processed in a way that suggested an “as is” product—which the district court took to mean that the class would be sufficiently numerous if only five percent of those transactions satisfied the class definition. The district court concluded that this guesswork was close enough to establish numerosity. But the Third Circuit held that this sort of “[m]ere speculation as to the number of class members * * * cannot support a finding of numerosity.”

Carrera v. Bayer Corp.

The Third Circuit’s decision in Carrera is another good illustration of the importance of the ascertainability requirement. The plaintiff in Carrera had filed a false-advertising class action against Bayer, purporting to represent a putative class of consumers who had purchased Bayer’s One-A-Day WeightSmart multivitamin. The district court certified the class, defined as all persons who purchased WeightSmart in Florida.

Normally, one would think that identifying members of class would be extraordinarily difficult, given that Bayer doesn’t sell the product directly to consumers, and so there was no master list of purchasers. But the plaintiff promised that records of retail sales and affidavits from class members would overcome this hurdle. And the district court agreed.

The Third Circuit, however, granted Bayer’s petition for review under Rule 23(f) and vacated the class certification on ascertainability grounds. The Third Circuit rejected the plaintiff’s proposal to identify class members from the records of third-party retailers, because there was no proof that those retailers even had records with the level of necessary detail.

The Third Circuit also rejected the proposal of accepting affidavits from would-be class members. The court explained that “it does not address a core concern of ascertainability: that a defendant must be able to challenge class membership.” Indeed, the Third Circuit observed, class members often “will have difficulty accurately recalling their purchases” years after the fact—for example, the named plaintiff himself had problems recalling his purchases during his own deposition. And these difficulties would give the defendant a strong defense to particular class member’s claims. To paper over these difficulties by allowing unrebutted affidavits would violate due process: “A defendant in a class action has a due process right to raise individual challenges and defenses to claims,” the Third Circuit explained, “and a class action cannot be certified in a way that eviscerates this right or masks individual issues.” The Third Circuit emphasized that “[a]scertainability provides due process by requiring that a defendant be able to test the reliability of the evidence submitted to prove class membership.”

Update (10-8-2013):  The plaintiff in Carrera has filed a petition for en banc rehearing, available here.

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The Third Circuit’s decisions in Hayes and Carrera (and before them, Marcus) provide defendants with added ammunition for challenging ascertainability (and, on related grounds, numerosity). Unless the plaintiffs have affirmatively proved that there is an administratively feasible method of determining whether a particular person is—or is not—a class member, the class should not be certified.

These decisions will also be helpful for defendants facing class actions in state court, where Federal Rule 23 is inapplicable. The Third Circuit’s tracing of the ascertainability requirement back to its roots in due process—which applies equally in state and federal courts—should give defendants a way to frame and preserve these issues even when the state-court precedent doesn’t seem to provide room for arguments about ascertainability.