Ascertainable Class

News & Analysis as of

Third Circuit Clarifies the Ascertainability Standard in Class Certification Proceedings

In a precedential opinion issued on April 16, 2015, the Third Circuit sought to clarify its requirement that a proposed class be sufficiently ascertainable in order to be certified under Fed. R. Civ. P. 23(b)(3). Expressing...more

Third Circuit Clarifies Its Ascertainability Standard

Ascertainability is an implied requirement for class certification, not expressly addressed in Fed. R. Civ. P. 23. While there are different formulations of the requirement, in essence it requires that there be an adequate...more

Denial of Class Certification In Computer Spyware Suit Vacated By Third Circuit

On April 16, 2015, the United States Court of Appeals for the Third Circuit vacated a district court’s order denying class certification of a computer spyware suit against Aaron’s Inc., concluding that district court had...more

The TCPA: Deep Dive: Details, Class Actions, Regulations, and Defense Strategies [Video]

In Part One of our complimentary, two-part webinar on the TCPA, we covered the basics. Join us for the second hour-long segment, as we get into the weeds of the TCPA. Part Two will cover: Exemptions/Details · What is an...more

Failure to Identify Fax Recipients Shows Putative Class Is Not Ascertainable

A court in the Northern District of Illinois recently denied class certification in a “fax blast” case because the plaintiff failed to meet its burden of proof in showing that the putative class was ascertainable where there...more

Running on Empty: Defective Gas Class Sputters in Louisiana District Court

The Middle District of Louisiana denied certification of a putative class bringing claims for redhibition and unjust enrichment against Exxon Mobil Corporation (“Exxon”). Plaintiffs allegedly purchased gasoline refined at...more

California Court of Appeal Lowers the Bar on Ascertainability Requirement in Consumer Class Actions

In Aguirre v. Amscan Holdings, Inc., Case No. 073059, 2015 Cal. App. LEXIS 214 (Cal. Ct. App. Feb. 11, 2015), a California Court of Appeal reversed the denial of certification of a putative class alleging violation of Civil...more

Not Saved By The Bell: Dismissing Classes Prediscovery

Two billion dollars. That is what the top legal counsel at nearly 350 companies spent on the defense of class actions in 2014. In addition to the cost of outside counsel, on average, companies dedicate six in-house...more

Food for Thought: Mirabella v. Vital Pharmaceuticals, Inc.

In Mirabella v. Vital Pharmaceuticals, Inc., consumers sued the manufacturer of Redline Xtreme Energy Drink, alleging that the manufacturer concealed the dangerous side effects of the energy drink. Plaintiffs requested relief...more

Judge Finds GenOn Power Plant Suit is Like School on a Saturday … No Class.

A Pennsylvania federal judge recently struck the class allegations from a suit brought against GenOn Power Midwest LP, alleging that its coal-fired power plant released toxic emissions that damaged surrounding property. Even...more

Illinois District Court Denies Certification of Class in TCPA Claim for Lack of Typicality, Adequacy, Numerosity and...

The Northern District of Illinois denied certification of a class in a claim brought pursuant to the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. Sec. 227. Plaintiff alleged that defendant violated the TCPA by...more

Ascertainability Saps Plaintiffs’ Energy in Dietary Supplement Class Action

In the recent decision Mirabella v. Vital Pharmaceuticals, Inc., Case No. 12-62086-CIV-ZLOCH (S.D. Fl. Feb. 27, 2015) the plaintiffs attempted, but failed, to certify a nationwide class of all purchasers of an energy drink...more

Rule 23 Study Agenda – Ascertainability

The final topic the Subcommittee has announced it will examine is the possibility of adopting a formal ascertainability requirement. The topic was suggested by several judges of the Third Circuit, who formally requested the...more

Food for Thought: 2014 Litigation Annual Review

Food for Thought reports on significant court decisions affecting the food industry. The focus of this edition is on several food-related cases pertaining to class certification; particularly, on district court decisions...more

Chi-Town Pizza Avoids Class Certification in TCPA Suit

The Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”), prohibits the transmission of “an unsolicited fax advertisement.” Rosen Family Chiropractic (“Rosen”) filed suit against Chi-Town Pizza on Div. St. (“Chi-Town...more

District Court Strikes Homeowners Policyholders’ Class Action Allegations

The United States District Court for the Southern District of Ohio granted defendant State Auto’s motion to strike plaintiffs’ class allegations, holding that the complaint itself demonstrated that the proposed class was not...more

BakerHostetler 2014 Year-End Review of Class Actions (and what to expect in 2015)

We are pleased to share with you the BakerHostetler 2014 Year-End Review of Class Actions, which offers a summary of some of the key developments in class action litigation during the past year. Class action litigation...more

U.S. Chamber of Commerce Files Amicus Brief on Ascertainability in Key Ninth Circuit Case

As readers of our blog know, ascertainability is one of the most contentious issues in class action litigation these days. Ascertainability is the main issue presented in Jones v. ConAgra Foods, No. 14-16327, a pending Ninth...more

Fail-Safe Class Fails in the Eastern District of Pennsylvania

In Zarichny v. Complete Payment Recovery Servs., Civ. No. 14-3197, 2015 U.S. Dist. LEXIS 6556 (Jan. 21, 2015), Plaintiff Sandra Zarichny attempted to bring a class action on behalf of two classes against defendants Fidelity...more

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

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. ...more

Third Circuit: Strict Ascertainability Optional for Rule 23(B)(2) Class

Although not explicitly set forth in Rule 23, an essential prerequisite of any action under Rule 23 is that there must be an identifiable “class” at the moment of certification. The shorthand term commonly used to refer to...more

The Ten Most Significant Class Action Cases of 2014

Year-end lists are funny things. They take a sort-of arbitrary starting and stopping point, and then they cram a bunch of prejudices into a (usually) arbitrary number of items. And then people take them kind of seriously....more

Wasted Away in Margaritaville: With Unascertainable Class, District Court Denies Class Certification in Skinnygirl Margarita Case

Alleging violations of Illinois statutory and common law, Amy Langendorf brought suit on behalf of “Any and all persons who purchased ‘Skinnygirl’ Margarita spirits in Illinois from March 1, 2009 until the date notice is...more

What Will Be in the Coming Class Action Amendments?

I’ve written a little so far about the fact that Rule 23 is likely to undergo revision in the next few years. Last week Judge Robert Michael Dow, who is a member of the Advisory Committee on the Rules of Civil Procedure’s...more

Skinnygirl Squeezes Past Class Action For Deceptive Advertising

Amy Langendorf alleged that Skinnygirl Margarita, a pre-mixed alcoholic beverage, contains the non-natural preservative sodium benzoate, rendering the product’s “all natural” label false and misleading. Langendorf filed suit...more

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