Ascertainability

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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.Continue Reading Third Circuit Rulings Give Teeth to Ascertainability Requirement for Class Certification

We’re big fans of filing an early motion to strike class allegations when it’s apparent from the pleadings that the class definition is fatally flawed. Why should a defendant be forced to submit to the wringer of class discovery before taking a swing at defeating class certification? A recent case involving Office Depot illustrates the successful use of that strategy.

In Lindsay Transmission LLC v. Office Depot Inc. (pdf) (E.D. Mo.), the plaintiff alleged that an Office Depot store had faxed him an advertisement in violation of the Telephone Consumer Protection Act (“TCPA”). The complaint demanded statutory damages on behalf…
Continue Reading Federal Court Grants Motion to Strike Class Allegations in TCPA Case

Plaintiffs who wish to bring product-liability and consumer-fraud class actions against businesses often overreach when defining the proposed class in order to raise the stakes—and hence the settlement pressure—on the defendant.  A recent unpublished decision by the Eleventh Circuit, Walewski v. Zenimax Media, Inc. (pdf), No. 12-11843, is yet another example of the growing consensus rejecting these overly broad putative classes.

In Walewski, a Florida purchaser of a fantasy video game (Elder Scrolls IV: Oblivion) alleged that after he had played the game for 450 hours, a software defect prevented him from “cast[ing] spells,” “open[ing] doors and…

Continue Reading Expelliarmus! Eleventh Circuit Disarms False-Advertising Class Action Against Makers of Fantasy Video Game

The Ninth Circuit’s recent decision in a TCPA case—Meyer v. Portfolio Recovery Associates (pdf)—involves several interesting issues for class-action practitioners even outside the TCPA setting.

First, a bit of background. In Meyer, the plaintiff sued a debt collector under the TCPA, alleging that it used an autodialer to call his cell phone number impermissibly. The plaintiff sought statutory damages and injunctive relief on behalf of a putative class of all California residents whom the defendant had called at cell phone numbers that had not been provided as part of the transaction giving rise to the debt in question. The district court certified the class under Federal Rule of Civil Procedure 23(b)(2) for the limited purpose of entering a preliminary injunction against the challenged conduct. The Ninth Circuit affirmed.

Setting aside the TCPA issues—which will be addressed in a subsequent post—the Ninth Circuit’s decision contains several holdings that should be of interest (and concern) to class-action defendants more broadly:Continue Reading Ninth Circuit Upholds “Provisional” Class Certification for Entry of a Preliminary Injunction in TCPA Class Action