Rule 23 does not explicitly require that a court be able to determine who the members are before certifying a class. But judges have found implicit in the Rule a requirement that membership in a defined class be “ascertainable” or “definite.” For example, a court cannot address the numerosity requirement or provide effective relief to the class without first determining who the members of a class are.

In recent years, the federal appellate courts have adopted two approaches to addressing ascertainability. The first approach, adopted by the First, Third, Fourth, and Sixth Circuits,¹ has been described as imposing a “heightened” ascertainability requirement, under which the plaintiffs bear the burden of establishing that:

• the class is defined with reference to objective criteria; and
• it is administratively feasible to determine whether putative class members fall within the class definition and thus are bound by the judgment.
  • Expressed another way, determining class membership cannot require “extensive and individualized fact-finding or ‘mini-trials.’” Marcus v. BMW of North America, LLC, 687 F.3d 583, 593 (3d Cir. 2012). The Fourth Circuit adopted this formulation in EQT Production Co. v. Adair, 764 F.3d 347, 358–59 (4th Cir. 2014), as did the Sixth Circuit in Tarrify Properties, LLC v. Cuyahoga Cnty., Ohio, 37 F.4th 1101, 1106 (6th Cir. 2022).

The second approach, taken by the Second, Sixth, Seventh, Eighth, Ninth, and Eleventh Circuits, rejects the administrative feasibility requirement, limiting the ascertainability inquiry to whether the class may be defined objectively.² Several of these courts specifically took issue with the suggestion that the complexity or burden of determining members of a class could defeat ascertainability. E.g., Cherry v. Dometic Corp., 986 F.3d 1296, 1303 (11th Cir. 2021) (“membership can be capable of determination without being capable of convenient determination”); Mullins v. Direct Digital, LLC, 795 F.3d 654, 657-58 (7th Cir. 2015) (other circuits examine the “potential difficulty of identifying particular members of the class;” but “[n]othing in Rule 23 mentions or implies this heightened requirement”).

The Third Circuit Court of Appeals’ recent opinion in Kelly v. RealPage Inc., 47 F.4th 202 (3d Cir. 2022), purported to clarify that circuit’s standard for the ascertainability requirement. Although continuing to adhere to an “administrative feasibility” criterion, the panel’s decision provides a significant limitation on that prong’s application. In particular, the court observed that the “administrative feasibility” requirement does not depend on the burden placed on the court or the parties in identifying class members.

In Kelly, the named plaintiffs filed a purported class action under the Fair Credit Reporting Act (“FCRA”) against RealPage, a credit reporting agency, on behalf of consumers who had received rental reports that failed to name the third-party vendors that provided public-record information to RealPage as FCRA requires. Id. at 207−08. In denying class certification, the district court concluded that the class was not ascertainable because determining which rental reports included public-record information would require “[a] review of each individual file [which] is, of course, not administratively feasible.” Id. at 210 (alterations in original).

The Court of Appeals reversed. Reviewing prior Third Circuit decisions, the Kelly panel emphasized that “a straightforward ‘yes-or-no’ review of existing records to identify class members is administratively feasible even if it requires [a] review of individual records with cross-referencing of voluminous data from multiple sources.” Id. at 224. RealPage argued that a file-by-file review of records “kept in separate databases with no ‘unique identifier’ used across both systems” would be required, constituting the kind of extensive, individualized mini-trials described in Marcus that would not be administratively feasible. Id. at 223.

The Kelly panel rejected this argument, clarifying that the language about individualized mini-trials referred only to cases in which “either a defendant’s records do not contain the information needed to ascertain the class or the records do not exist at all.” Id. at 224. The Court of Appeals concluded that neither the difficulty involved in reviewing records nor the number of files is relevant to the ascertainability of the class.

The Third Circuit’s ruling in Kelly provided an answer to the Eleventh Circuit’s objection in Cherry that the “administratively feasible” standard improperly considered the burden of reviewing records. The Cherry decision acknowledged that feasibility considerations should be taken into account, but under the manageability criterion of Rule 23(b)(3), not as part of ascertainability: “difficulty in identifying class members is a difficulty in managing a class action.” 986 F.3d at 1303−04. The difference, the Cherry panel explained, was that “[t]he manageability inquiry focuses on whether a class action will create relatively more management problems than any of the alternatives, not whether it will create manageability problems in an absolute sense.” Id. at 1304 (emphasis added; internal quotation omitted).

After Kelly, it is not clear what practical difference this absolute/relative distinction will mean for class certification in that circuit. Because neither the volume of records nor the burden of reviewing them—however great—seems relevant to the administrative feasibility inquiry, the only question becomes whether class membership can be determined by reference to the records themselves. And it remains hard to see how a class rejected under the Third Circuit’s standard would not also be found unmanageable under the Eleventh Circuit’s formulation.

Whether the Kelly approach will be followed in other circuits remains to be seen. If it is, the so-called “heightened” ascertainability test may end up as more of a molehill than a mountain.

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¹ Newberg and Rubenstein on Class Actions § 3:3 (6th ed.) (also noting an unpublished 11^th Circuit opinion using the same language)

² Id.