What is seemingly a growing divide between circuits has developed on the appropriate standard for assessing ascertainability in federal class actions, including Telephone Consumer Protection Act (TCPA) class actions. Ascertainability, the implied requirement in Rule 23 of the Federal Rules of Civil Procedure, requires that there be a means of determining class membership in a proposed class action. Courts have disagreed on the appropriate standard for assessing ascertainability.

The US Court of Appeals for the Third Circuit has articulated a “heightened” ascertainability standard requiring not only that a class be defined with reference to objective criteria, but also that plaintiffs put forward a reliable and administratively feasible mechanism for determining whether putative class members fall within the class definition. The Second, Sixth, Seventh, Eighth and Ninth Circuits, however, have all expressly declined to apply a “heightened” ascertainability standard, and instead require only that a class be defined with reference to objective criteria. While this trend towards a lower ascertainability standard may seem to provide an easier path to class certification for TCPA plaintiffs, several recent decisions have signaled that even under a lower standard, courts are unwilling to accept unreliable proof of class membership in TCPA class actions.

On July 11, 2017, the US Court of Appeals for the Sixth Circuit affirmed the denial of class certification in a TCPA case involving junk faxes, upholding a district court ruling that the lack of logs or other records reflecting successful facsimile transmissions rendered plaintiffs’ proposed class of fax recipients unascertainable.

In the case, Sandusky Wellness Center, LLC v. ASD Specialty Healthcare Inc., No. 16-3741 (6th Cir. July 11, 2017), plaintiffs had moved to certify a class of fax recipients, proposing that individual affidavits, attesting to receipt of the fax, could be used to determine class membership. In affirming the district court denial of certification, the Sixth Circuit found that in the absence of fax logs demonstrating who actually received a facsimile, objective criteria for determining class membership did not exist. The court specifically noted that fax recipients could not realistically be expected to remember receiving a one-page fax sent years prior, and therefore relying on self-serving affidavits was not an objective means to ascertain class membership. The Sixth Circuit also found that reliance on individual affidavits raised commonality and predominance questions, because assessing the veracity of the affidavits would necessarily require individualized “mini-trials.”

Just a week prior to the Sixth Circuit’s decision in Sandusky, the US District Court for the Western District of Missouri reached a similar holding in St. Louis Heart Center Inc. v. Vein Centers for Excellence Inc., 4:12-cv-00174 (July 5, 2017), decertifying a class of fax recipients on ascertainability grounds. St. Louis Heart Center concerned the alleged transmittal of unsolicited faxes sent on behalf of Vein Centers, a physician marketing firm. Although fax logs reflecting successful transmissions were unavailable, a class of all individuals who were sent a fax by Vein Centers was certified by the court in 2013.

Following clarification from the Eighth Circuit in McKeage v. TMBC, LLC, 847 F.3d 992 (8th Cir. 2017), that the makeup of a class must be determined by “objective criteria,” the district court reversed course, denying plaintiffs’ motion for summary judgment and granting defendant’s motion for decertification. The court found that in the absence of fax logs, plaintiffs had failed to identify “objective criteria” through which the class could be identified. The court also rejected plaintiffs’ argument that potential class members could sign affidavits or claim forms in response to a notice that would go out after the case was resolved, finding, similar to the Sixth Circuit, that it would be difficult to determine whether recollections of having received a fax years ago were valid.

Earlier this year, the US Court of Appeals for the Second Circuit also weighed in on the issue, affirming a district court’s denial of class certification on ascertainability grounds in a TCPA case where call logs did not exist. In Leyse v. Lifetime Entm’t Servs., Inc., No. 16-1133-cv, 2017 WL 659894 (2d Cir. Feb. 15, 2017), plaintiffs brought a putative class action against Lifetime for allegedly violating the TCPA by making a series of unlawful, prerecorded telephone calls. Plaintiffs proposed identifying class members through affidavits from individuals who would testify to receipt of the calls, because logs of the call recipients did not exist. The district court concluded—and the Second Circuit affirmed—that this was not an ascertainable way to identify class members given “(1) no list of the called numbers existed; (2) no such list was likely to emerge; and (3) [ ] proposed class members could not realistically be expected to recall a brief phone call received six years ago or ... to retain any concrete documentation of such receipt.”

These decisions illustrate that even under a “lower” ascertainability standard courts still require some objective means of determining class membership. In the TCPA context, this may mean requiring logs that illustrate who received a call or fax. At a minimum, these cases provide a new tool for companies defending TCPA cases in which logs or other records are lacking.

With the ongoing wave of TCPA litigation, the standard for ascertainability will continue to be a key issue in many new and ongoing cases.