Predominance and typicality, move over. With ever more courts rejecting class actions before even considering Federal Rule of Civil Procedure 23′s elements, the big buzzwords these days are ascertainability, overbreadth and “fail-safe.”
The reason for this trend? Courts are realizing that there is no practical way to try a class action without actually knowing who the plaintiffs are. As one court recently explained, class membership must be ascertained at the front end of a class action to serve two important interests: giving “adequate notice to class members” and making it possible to “determine after the litigation has concluded who is barred from relitigating.” Sevidal v. Target Corp., 189 Cal. App. 4th 905, 919 (Calif. 4th Ct. App. 2010) (internal quotation marks and citation omitted).
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