Class Certification: Affidavits and Ascertainability Analysis

The US Court of Appeals for the Third Circuit recently vacated a district court’s denial of class certification. City Select Auto Sales Inc. v. BMW Bank of North America Inc., 867 F.3d 434 (3d Cir. 2017). The Court rejected the district court’s conclusion that Defendant’s database, combined with affidavits, could never meet the required ascertainability standard.

In late 2012, Creditsmarts used a vendor to send approximately 21,000 fax advertisements for BMW to car dealerships. However, neither Creditsmarts nor the vendor retained a list of fax recipients. Id.at 437. Plaintiff, who allegedly received one of the faxes, filed a complaint asserting TCPA claims on behalf of a putative class consisting of “All auto dealerships that were included in the Creditsmarts database on or before December 27, 2012, with fax numbers identified in the database who were sent one or more telephone facsimile messages between November 20, 2012 and January 1, 2013, that advertised the commercial availability of property, goods or services offered by [BMW].” Id.

During the course of class certification discovery, the district court denied Plaintiff’s motion to compel production of the Creditsmarts database because Plaintiff (i) previously agreed not to seek production of the database before a ruling on class certification, (ii) delayed in seeking to compel such production, and (iii) had not shown that disclosure of the entire database was necessary for addressing certification, as defendants had already produced exemplar pages from the database. Id.& n.1. The district court subsequently denied Plaintiff’s motion for class certification, reasoning that there was no reliable and administratively feasible way to determine who was actually sent the faxes at issue. Id. at 438.

The Third Circuit vacated the class certification denial, finding that (i) the district court was wrong to hold that affidavits can never be used in the ascertainability analysis, and (ii) the failure to produce Creditsmarts’s database in discovery denied Plaintiff of the opportunity to demonstrate the existence of a reliable, administratively feasible method of ascertaining the class based, in whole or in part, on the database. Id. at 440-41. Plaintiffs need not establish “that a single record, or set of records, conclusively establishes class membership,” but rather must only establish that there are “objective criteria for class membership” and “a reliable and administratively feasible means of determining whether these criteria are met” at the class certification stage. Id. at 441. The Court also observed that “[a]ffidavits, in combination with records or other reliable and administratively feasible means,” may be one way to meet this standard. Id.

Class action plaintiffs may argue that the City Select decision weakens the Third Circuit’s ascertainability standard for class certification. However, the Third Circuit emphasized that “[t]he determination [of] whether there is a reliable and administratively feasible mechanism for determining whether putative class members fall within the class definition must be tailored to the facts of the particular case,” and that “[t]he amount of over-inclusiveness . . . of the proposed records is a critical consideration.” Id. Further, the court cautioned that “[a]ffidavits from potential class members, standing alone, without ‘records to identify class members or a method to weed out unreliable affidavits,’ will not constitute a reliable and administratively feasible means of determining class membership.” Id. at 441 (emphasis added).