Class ascertainability.

• Author: Shaw, Geoffrey C.
• Position: Introduction through I. The Life of the Case: Notice, Remedies, Res Judicata, p. 2354-2378

NOTE CONTENTS INTRODUCTION I. THE LIFE OF THE CASE: NOTICE, REMEDIES, RES JUDICATA A. Notice B. Remedies C. Res Judicata II. DEFINITIONAL MALFUNCTIONS: SUBJECTIVITY, VAGUENESS, AND SCOPE A. Subjectivity and Vagueness 1. Subjective Classes 2. Vague Classes B. Problems of Scope 1. Overbroad Classes 2. Failsafe Classes III. KEEPING FAITH WITH RULE 23 IV. A RETURN TO THE TEXT CONCLUSION INTRODUCTION

"Modern society," wrote Harry Kalven, Jr. and Maurice Rosenfield, two legal visionaries who conceptualized the class suit, "seems increasingly to expose men to ... group injuries for which individually they are in a poor position to seek legal redress." (1) Rule 23 of the Federal Rules of Civil Procedure responds to this problem. The Rule, which took its modern form in 1966, creates a class action mechanism to aggregate the claims of people who "are isolated, scattered, and utter strangers to each other." (2) In doing so, the Rule aims to bring about regulatory effects far beyond what is possible with individual litigation alone and to break from the old formalisms that kept claims out of court. In the words of its principal drafter, Benjamin Kaplan, the Rule "intended to shake the law of class actions free of abstract categories contrived from... bloodless words... and to rebuild the law on functional lines responsive to... recurrent life patterns which call for mass litigation through representative parties." (3) Today, "modern society" still "expose[s]" men and women to "group injuries for which... they are in a poor position to seek legal redress" as individuals. But a "judicially created" (4) change to the law of class certification, untethered to the carefully engineered text of Rule 23, has disrupted class action procedure and made it harder for them to "seek legal redress" as groups. This development deserves a critical and "rigorous analysis." (5)

Rule 23 establishes specific criteria for class certification. (6) The proposed class must be so numerous that joinder of each individual plaintiff is "impracticable"; (7) the members of the class must have common claims; (8) the claims of the representative plaintiffs must be typical of the class; (9) and the representative plaintiffs must be able "adequately" to represent the absent class members. (10) If these conditions are satisfied, the proposed class must also fit into one of three functional categories. (11) "A party seeking class certification must affirmatively demonstrate his compliance with the Rule-that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc." (12) And a court must perform a "rigorous analysis" to ensure that the proposed class meets the Rule's requirements. (13)

Recently, however, a growing number of federal courts have identified an additional, implicit requirement for class certification: the class must be ascertainable. (14) Although this "implied requirement of ascertainability" does not appear in the text of Rule 23 and "is judicially created," (15) courts deploy it as an independent bar to class certification. (16) The general idea is that there ought to be an objective and administratively feasible way to determine exactly who is in the class. As the Court of Appeals for the Third Circuit put it, "[A]scertainability entails two important elements. First, the class must be defined with reference to objective criteria. Second, there must be a reliable and administratively feasible mechanism for determining whether putative class members fall within the class definition." (17) Courts disagree, however, about exactly what the requirement means and how it should be applied. Some courts have placed greater emphasis on the objectivity of the class's definition, which is said to protect against excessive administrative burdens over the course of the litigation. (18) Other courts have directly scrutinized the administrative feasibility of identifying individual members, requiring plaintiffs to propose and defend methods for identifying the class's membership. (19)

A controversial (20) case, Carrera v. Bayer Corp., offers an illuminating example. (21) Gabriel Carrera sued a large pharmaceutical company, Bayer, on behalf of customers who had purchased an over-the-counter weight loss pill. Not surprisingly, most of these purchasers had not lost weight, and Carrera and the class members sought to recover small dollar amounts in compensation for misleading advertising. As with many consumer class actions, each class member's monetary claim was so low that the case would likely never have been brought except as a class action. (22) Bayer argued that it was too difficult to figure out who was a member of the class and who was not because neither Bayer nor the plaintiffs had any documentary records to prove class membership. (21) Bayer had no records because it had simply sold the pills to intermediary retailers, and those intermediary stores kept no records of who bought what, only statistics about what was bought and revenue trends. Individual purchasers might have been given receipts, but most of them were lost, and even so, many receipts did not affirmatively identify purchasers. The Court of Appeals for the Third Circuit sided with Bayer and decertified the class. The class failed the ascertainability test: determining who was a member of the class and who was not could require "mini-trials" and would rely too heavily on the subjective "say-so" of potential members. (24) As one writer put it, "class dismissed." (25)

Ascertainability doctrine is "one of the most contentious issues in class action litigation these days." (26) On the one hand, it seems sensible for classes to be defined in a clear way that permits the court to identify the class members. Why should the court or the defendant not be able to ask "who is in the class?" and receive a definite answer? How can a court provide notice to class members if it cannot ascertain their identities? Who would share in a damage award if the claim succeeds? Who would be bound by the outcome of a case? On the other hand, what is the fate of small-dollar consumer class actions in a world with ascertainability tests? In this kind of litigation, specific evidence of individual class membership is often hard to obtain, and the value of individual claims is frequently too low to incentivize individual suits. If the criteria for class certification become harder to satisfy, will laws protecting consumers against fraud, deception, dangerous products, false advertising, breach of contract, and many other harms be sufficiently enforced? How will wrongdoers be deterred? Further, are judges supposed to create new implicit requirements to supplement the Federal Rules of Civil Procedure? And what does the ascertainability requirement actually require?

I write against the backdrop of a debate among lawyers and judges about what the ascertainability requirement means-a debate that has generated a lot of heat, but not much light. The accelerating application of the requirement in court has been haphazard at best. Efforts to enforce the requirement in different contexts have produced differences among circuits, (27) splits within individual al circuits, (28) and even differences of opinion among different judges on the same district court. (29) A few judges have voiced their concern about the requirement's evolution. One district court judge, for example, believes that "[i]f class actions could be defeated because membership was difficult to ascertain at the class certification stage, there would be...