The Third Circuit Distinguishes Between Types of Class Actions for Purposes of Its Ascertainability Analysis

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Action Item: Shelton is the latest in a recent line of cases from the Third Circuit demonstrating that application of the ascertainability requirement in class action litigation continues to evolve. 

In a recent precedential decision, Shelton v. Bledsoe, the Third Circuit addressed whether ascertainability is a requirement for certification of injunction/declaratory relief class actions arising under Rule 23(b)(2). 2015 WL 74192 (3d Cir. Jan. 7, 2015). While citing to and discussing its recent trilogy of decisions that required an ascertainability finding at the class certification stage in class actions arising under Rule 23(b)(3) (See Marcus v. BMW of N. Am., LLC, 687 F.3d 583 (3d Cir. 2012); Hayes v. Wal–Mart Stores, Inc., 725 F.3,d 349 (3d Cir. 2013); Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013)), the Court in Shelton refused to extend this requirement to injunction/declaratory relief class actions arising under Fed. R. Civ. P. 23(b)(2) and opined that “it does not follow from our holding in Marcus that ascertainability is always a prerequisite to class certification.” Shelton, 2015 WL 74192 at *5. 

Shelton, a federal inmate, brought a class action for alleged violations of the Eighth Amendment and the Federal Tort Claims Act. The District Court denied Shelton’s motion to certify an injunctive class (among others), because it found that the proposed class was not ascertainable. The Third Circuit reversed the District Court’s denial of Shelton’s class certification motion. Relying on precedent in other circuits and an Advisory Committee note to Fed. R. Civ. P. 23, the Court noted that “illustrative” examples of Rule 23(b)(2) classes are “various actions in the civil-rights field where a party is charged with discriminating unlawfully against a class, usually one whose members are incapable of specific enumeration.Shelton, 2015 WL 74192 at *5 (citations omitted) (emphasis in original). The Court further opined that  “a judicially-created implied requirement of ascertainability – that the members of the class be capable of specific enumeration – is inappropriate for (b)(2) classes.” Id. (emphasis in original).  Importantly, the Court made clear that its decision had no impact on Rule 23(b)(3) class actions, observing that “the requirement that the class be defined in a manner that allows ready identification of class members, serves several important objectives that do not exist or are not compelling in (b)(2) classes.” Id.

Thus, while Shelton holds that an ascertainability determination may be unnecessary in injunction/declaratory relief class actions under Rule 23(b)(2), this decision does not disturb the Third Circuit’s prior decisions in Marcus, Carrera and Hayes, and ascertainability remains a threshold requirement for Rule 23(b)(3) class actions.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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