Is My Case Suitable for Class Certification? Part 2

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Is My Case Suitable for Class Certification? Part 2

Rule 23 of the Federal Rules of Civil Procedure governs the procedure and prerequisites required for class certification in the Federal Courts. The Rule states four prerequisites applicable to all class actions. They are most commonly referred to as (1) “numerosity” (“a class so [large] that joinder of all members is impracticable”); (2) “commonality” (“questions of law or fact common to the class”); (3) “typicality” (named parties’ claims or defenses “are typical … of the class”); and (4) “adequacy of representation” (representatives “will fairly and adequately protect the interests of the class”). This article addresses the prerequisite, implicit in the “numerosity” prong, that the class be “ascertainable.”

• Ascertainability

While it is unnecessary, at the outset of a class action, that the identities of the putative class members be known to putative class counsel, the putative class must nevertheless consist of an identifiable, or ascertainable, group of persons and/or entities. While often unmentioned, the “numerosity” prong – or, more precisely, the prerequisite that joinder of all class members be impracticable – requires that a party seeking to utilize the class action device define, with reference to objective criteria and common characteristics, a group of plaintiffs whose right to recovery is based upon their falling squarely within the class definition and whose identities may be feasibly and reliably confirmed without reference to subjective or varying proof. Indeed, the fundamental right of due process requires that those bound by any judgment or entitled to damages or other relief be adequately notified. This can be assured only if those who must receive notice of the class action be reasonably identified.

Frequently, an individual’s right to recovery and inclusion in the class can be confirmed through business records belonging to the defendant. That is not to say, however, that records identifying putative class members must exist. A defendant cannot escape liability or avoid class certification by pointing to its own failure to maintain adequate records identifying those harmed by its wrongful conduct. So, for example, where complete records regarding the sale of an allegedly defective product do not exist, a class may nevertheless be ascertainable because a combination of sales records, publication of notice, and verification by photograph could be used identify class members. Thus, while the ascertainability of a class presents an obstacle increasingly cited by defense counsel, it can be overcome by experienced and attentive class counsel.

Counsel seeking to certify a class action should define the class by focusing on the defendant’s conduct, the geographic and temporal scope of the class, and other limiting parameters and should guard against attempts by defendant to stretch the ascertainability requirement beyond its limited purposes of ensuring that notice may issue, that potential claims processes are administratively feasible, and that those who will be bound by any judgment can be identified.


If you feel you may have a claim suitable for class certification, The Klamann Law Firm can help. Please call us today to learn more.

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