Third Circuit Reaffirms Class Plaintiff’s Burden To Demonstrate Ascertainability, Numerosity


On August 2, the U.S. Court of Appeals for the Third Circuit held that a class plaintiff has the burden of showing that the class is ascertainable and numerous. Hayes v. Wal-Mart Stores, Inc., No. 12-2522, 2013 WL 3957757 (3rd Cir. Aug. 2, 2013). In this case the plaintiff seeks to represent a class of individuals who were sold warranties for items specifically excluded from the warranty coverage. The trial court granted class certification, holding in relevant part that the class was both ascertainable and sufficiently numerous, despite the fact that the defendant had no method for determining the class based on its recordkeeping system. In light of its own holding in Marcus v. BMW of North America, LLC, 687 F.3d 583 (3d Cir. 2012), which the appeals court issued after the trial court granted class certification, the court vacated the trial court’s decision. The appeals court explained that, as detailed in Marcus, the plaintiff must demonstrate a reliable and administratively feasible method to ascertain the class, and the nature or thoroughness of a defendant’s recordkeeping does not alter the plaintiff’s burden. Further, the court held that the plaintiff must provide evidence of numerosity, and that the trial court may not take a “wait-and-see approach” to numerosity based on a plaintiff’s promise. The court vacated the trial court order and remanded for further proceedings.


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