On May 13, in Daniels v. Hollister Co., No. A-3629, 13T3, 2015 N.J. Super. Lexis 77 (App. Div. May 13, 2015), the New Jersey Appellate Division addressed for the first time whether a plaintiff was required to demonstrate “ascertainability” of class members to be granted class certification.
Ascertainability, as held by some federal courts discussing Rule 23 of the Federal Rules of Civil Procedure (FRCP), is embedded in FRCP 23, in addition to the four express requirements for class certification (numerosity, commonality, typicality and adequacy of representation). Ascertainability requires a court to determine whether the members of a class can be identified (“ascertained”) based on current and objective criteria. In a strong condemnation of the concept as antithetical to the purpose and history of class actions, the Appellate Division affirmed the grant of class certification, holding that while class certification presupposes the existence of a properly defined class, New Jersey does not require ascertainability as a condition for class certification in low-value consumer transactions.
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