Although this blog is focused on class action decisions originating out of the 8th and 10th Circuits where your humble authors live, we would be remiss not to mention two recent decisions out of the Third Circuit which address Rule 23′s long-standing implicit requirement of ascertainability.

Earlier this month, in Hayes v. Wal-Mart Stores, Inc., No. 12-2522, 2013 WL 3957757 (3d Cir. Aug. 2, 2013), the court vacated a trial court’s decision granting class certification, holding in part that a plaintiff must demonstrate a reliable and administratively feasible method to ascertain the class.  In Hayes, the district court certified a class of consumers who bought extended warranties for “as is” products, as those warranties specifically excluded “as is” products, despite the fact that Wal-Mart had no method for determining how many such warranties were sold.  The Third Circuit, however, reiterated that “if class members are impossible to identify without extensive and individualized fact-finding or mini-trials, then a class action is inappropriate,” and that in the context of this case, ”the nature or thoroughness of a defendant’s recordkeeping does not alter the plaintiff’s burden” to demonstrate the Rule 23 requirements.

The Third Circuit then went further to emphasize the importance of ascertainability in a decision published last week, Carrera v. Bayer Corp., No. 12-2621 (3d Cir. Aug. 21, 2013), where it not only specified the evidentiary burden a plaintiff must hurdle to demonstrate class membership while also stressing a defendant’s due process right to challenge it.  In Carrera, plaintiff alleged that Bayer’s One-A-Day WeightSmart multivitamin was falsely advertised regarding its weight-loss properties. Despite the fact Bayer did not sell the product directly to consumers, and therefore had no record of potential class members, the district court certified the class based on the plaintiff’s proposal to determine class membership based on records of retail sales and affidavits by class members.

Not surprisingly based on its recent jurisprudence, the Third Circuit reversed.  Given the undisputed lack of proof of purchase, the court determined that neither method proposed by plaintiff satisfied their burden to show the class is ascertainable.  Digging into the factual record as part of its “rigorous analysis,” the court found that there was no evidence that a single purchaser could be identified using prior records of sales, or that third-party retailers even had records for the relevant period.  Further, with respect to the use of affidavits to prove class membership, the court rejected their proposed use “because it does not address a core concern of ascertainability: that a defendant must be able to challenge class membership. This is especially true where the named plaintiff’s deposition testimony suggested that individuals will have difficulty accurately recalling their purchases of [the product].”  The court went further The court found that “[a] defendant in a class action has a due process right to raise individual challenges and defenses to claims, and a class action cannot be certified in a way that eviscerates this right or masks individual issues.” The court further and stated  that “[a]scertainability provides due process by requiring that a defendant be able to test the reliability of the evidence submitted to prove class membership.”

What does this mean for practitioners in the Eighth and Tenth Circuits?  For starters, the ascertainability requirement has not really been discussed in much detail by either Circuit court.  See, e.g., Davoll v. Webb, 194 F.3d 1116, 1146 (10th Cir. 1999) (affirming district court’s decision that class description was not “administratively feasible” but without using term “ascertainability”); Ihrke v. Northern States Power Co., 459 F. 2d 566, 573 n.3 (8th CIr. 1972) (noting requirement in footnote without discussion).  Perhaps the Third Circuit’s explicit statements tying the class membership inquiry to a defendant’s due process rights will spur the courts to re-examine the requirement in future cases.