A Turning Point for the Carrera v. Bayer Ascertainability Doctrine?

Byrd v. Aaron’s Inc., 784 F.3d 154 (3d Cir. 2015).  In this case under the Electronic Communications Privacy Act, 18 U.S.C. §2511, there were “objective records” that could “readily identify” class members.  Indeed, defendant’s own records revealed the computers on which allegedly violative spyware was activated, “as well as the full identity of the customer who leased or purchased each of those computers.”  Despite that, the District Court denied class certification because it found the class not ascertainable, for various reasons.  The Third Circuit granted plaintiffs’ Rule 23(f) petition for interlocutory review, reversed the ruling below, and remanded for further proceedings.

Judge Smith wrote a lengthy and extremely scholarly opinion for the panel.  After discussing in exquisite detail the origin and application of the ascertainability concept in the Third Circuit and elsewhere, he identified multiple ways in which the District Court had “confused ascertainability with other relevant inquiries under Rule 23,” so as to amount to an abuse of discretion, the standard of review for class certification decisions.

Judge Smith observed that although the Third Circuit’s “ascertainability decisions have been consistent and reflect a relatively simple requirement,” there has been “apparent confusion” in the application of those decisions.  “Not surprisingly, defendants in class actions have seized upon this lack of precision by invoking the ascertainability requirement with increasing frequency in order to defeat class certification.”  Seeking “to dispel any confusion,” Judge Smith emphasized that the requirement “is grounded in the nature of the class-action device itself,” not in any Rule 23 criterion, and merely “ensures that a proposed class will actually function as a class.”  Ascertainability has but two components: (1) the class must be “defined with reference to objective criteria,” and (2) there must be a “reliable and administratively feasible mechanism for determining whether putative class members fall within the class definition.”  Plaintiffs satisfied that test here.

The District Court had found the proposed class definitions both underinclusive and overbroad.  Judge Smith noted that this was not the first time that the Third Circuit had faced an appeal in which a District Court had misunderstood ascertainability, citing Grandalski v. Quest Diagnostics, Inc., 767 F.3d 175, 184 (3d Cir. 2014).  He painstakingly re-explained the principles of ascertainability, but made clear that some defendants had gone too far.  “The ascertainability inquiry is narrow.  If defendants intend to challenge ascertainability, they must be exacting in their analysis and not infuse the ascertainability inquiry with other class-certification requirements,” as happened in the District Court here.  That court had erroneously mixed in such distinct concepts as class definition, predominance of common issues, and standing.

In fact, even all of Judge Smith’s scholarship could not make the ascertainability principle workable, let alone fair.  In a highly compelling concurring opinion, Judge Rendell made that precise point.  “[T[he lengths to which the majority goes in its attempt to clarify what our requirement of ascertainability means, and to explain how this implicit requirement fits in the class certification calculus, indicate that the time has come to do away with this newly created aspect of Rule 23 in the Third Circuit.”  Judge Rendell went on to say that the Third Circuit had “effectively thwarted small-value consumer class actions by defining ascertainability in such a way that consumer classes will necessarily fail to satisfy for lack of adequate substantiation.  Consumers now need to keep a receipt or a can, bottle, tube, or wrapper of the offending consumer items in order to succeed in bringing a class action.”

That powerful concurrence, along with the dissenting opinion of Judge Ambro and others from the denial of en banc review in Carrera v. Bayer Corp., make an overwhelming case for the abolition of the ascertainability concept that culminated with Carrera.  The concept makes many valid class actions impossible to certify, and is unworkable in practice to boot.  The time has come, as Judge Rendell said, to return to a focus on the class definition only, as was the rule before the Third Circuit started down the path, in 2012, that led to Carrera.

 

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  1. […] (App. Div. 2015).  Readers of this blog have gotten their fill (including, most recently, here and here) of discussion and analysis of the notion that there is some sort of “class […]

  2. […] judge on a three-judge Third Circuit panel to issue a concurring opinion is not unusual, as in this recent example.  Occasionally, two out of three judges join in a concurrence, as recently happened here.  But it […]

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