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Third Circuit Revises Position on Ascertainability in TCPA Suit

On Wednesday, August 16, 2017, the Third Circuit Court of Appeals issued its opinion in City Select Auto Sales v. BMW Bank of North America, Case No. 15-3931, wherein it found that sworn affidavits on behalf of plaintiffs may, under certain conditions, satisfy the Third Circuit’s ascertainability standard. The decision will have an impact not only on class action litigation within the Third Circuit, but the status of ascertainability disputes around the nation. 

A class under Rule 23(b)(3) must, inter alia, be currently and readily ascertainable based on objective criteria. This criteria requires that a reliable and administratively feasible mechanism for identifying class members must be available. However, there is no uniform standard among federal courts as to what constitutes a reliable and feasible mechanism, nor is there agreement as to whether a distinct ascertainability requirement even exists. This uncertainty is reflected through several recent Circuit Court holdings and a pending application before the United States Supreme Court involving this standard. 

A decision from the Ninth Circuit Court of Appeals is the subject of a petition for a writ of certiorari before the Supreme Court. See Conagra Brands, Inc. v. Briseño, Docket No. 16-1221. There, Conagra is seeking review of a Ninth Circuit decision affirming class certification in a false labeling suit where the class members were identified through affidavits. The petition notes a circuit split involving the Second, Third, Sixth, Seventh and Ninth Circuit Courts concerning ascertainability standards. While that petition is pending, the Second and Sixth Circuits issued opinions this summer on this issue. The Second Circuit in In re Petrobas Securities, Case No. 16-1914, in a departure from its prior jurisprudence, declined to acknowledge an “administrative feasibility requirement” and indicated that affidavits would be acceptable to satisfy Rule 23(b)(3)’s ascertainability requirement. However, the Sixth Circuit’s holding in Sandusky Wellness Center v. ASD Specialty Healthcare, Case No. 16-3741, although stopping short of declaring an ascertainability requirement, found that the class “must be adequately defined and clearly ascertainable … regardless of whether this concern is properly articulated as part of ascertainability, Rule 23(b)(3) predominance, or Rule 23(b)(3) superiority.” 

While the Third Circuit still acknowledges an ascertainability requirement, its holding in City Select has made it easier for class action plaintiffs to satisfy the burden by permitting reliance on affidavits. Moreover, the holding may provide a basis for the Supreme Court to deny certification in the Conagra petition, given that the Third Circuit and Second Circuit have softened or revised their positions on ascertainability. 

A copy of the Third Circuit’s decision in Conagra may be found here

  • Partner

    Andrew Sayles defends financial institutions and their service partners in complex litigation and class actions, with a particular emphasis on issues related to consumer financial services regulation. He also advises clients in ...

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