The Enhanced Scrutiny of Class Definitions Under the Ascertainability Requirement: An Additional Hurdle for Plaintiffs or an Increased Burden for Defendants?

When a plaintiff seeks certification of a class, the issue of whether the class is “ascertainable” has become an increasingly significant battleground issue in class certification proceedings. While not explicitly set out in Rule 23 of the Federal Rules of Civil Procedure, ascertainability is now widely recognized as an implied prerequisite for class certification. Ascertainability refers to the requirement that the class definition be sufficiently definite so that it is administratively feasible to determine whether a particular person is a member of the proposed class by reference to objective and definite criteria. Recent appellate authority suggest that both plaintiffs and defendants must consider issues relating to the feasibility of identifying class members when addressing a motion for class certification.

The ascertainability requirement serves several important objectives. First, it eliminates serious administrative burdens that are not consistent with the efficiencies expected in a class action. Second, it protects absent class members by ensuring the best notice possible, consistent with both requirements of due process and Rule 23. Third, it protects defendants by ensuring that the defendant can clearly identify the class members bound by any final judgment. Similarly, a class definition tied to objective and definite criteria ensures it will be feasible for both a defendant and potential class members to identify who may ultimately be entitled to damages or other relief. Defining class membership by reference solely to objective factors also avoids fail-safe classes, in which a class is defined in terms of the merits of a plaintiff’s claims.

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