The degree of rigor needed to attain class action certification under Rule 23 of the Federal Rules of Civil Procedure1 are hotly litigated issues in the federal courts these days. Approval or denial of class certification often can have outcome determinative results. On the heels of the U.S. Supreme Court’s decision to grant certiorari in Bouaphakeo v. Tyson Foods,2 about which we have written in a previous column,3 an outright split among several circuit courts on the ascertainability requirement of Rule 23 may tee up yet another class certification issue for the Supreme Court to resolve. On July 28, 2015, the U.S. Court of Appeals for the Seventh Circuit issued a decision in Mullins v. Direct Digital,4 in which the opinion penned by Judge Hamilton disagreed with the heightened ascertainability standard adopted by the U.S. Court of Appeals for the Third Circuit.5
Heightened Ascertainability
Ascertainability refers to the concept that a class must be clearly and sufficiently defined, and is an implicit requirement recognized by courts for a class to be certified under Rule 23(b)(3). Courts have traditionally utilized the ascertainability requirement to weed out deficient class definitions, such as those (1) suffering from vagueness; (2) derived from subjective criteria; or (3) defined based on individual elements of a claim or success on the merits.6 Recently, however, the Third Circuit adopted a judicially created “heightened ascertainability” standard that elevated the burden of proof plaintiffs must meet at the class certification stage.
