Hayes v. Wal-Mart Stores, Inc., 725 F.3d 349 (3d Cir. 2013). In this consumer class action, the Third Circuit, in an opinion by Judge Scirica, vacated class certification. That decision rested largely on the fact that the district court had not had the benefit of Marcus v. BMW of North America, Inc., 687 F.3d 583 (3d Cir. 2012), when it rendered its decision to certify the class. The flaws of Marcus, especially its discussion of the ascertainability of the class, were discussed here. The need for the Third Circuit to walk back some of its easily misapplied language from Marcus regarding ascertainability remains acute.
Today’s decision went on, however, to raise questions as to the named plaintiff’s constitutional standing, based on certain deposition testimony that the class representative gave. The principle that a class representative must be a member of the class that he seeks to represent is a settled one, as discussed here. Judge Scirica left the standing issue to be explored further on remand. And, because plaintiff here “did not have an opportunity to address” the principles of Marcus in his original motion for class certification, the issue of certification was left for further consideration on remand as well.