The Third Circuit Chips Away at Its Class Action Ascertainability Doctrine

Hargrove v. Sleepy’s Inc., ___ F.3d ___ (3d Cir. 2020). Readers of this blog know of my distaste (to say the least) for the Third Circuit’s unique interpretation of the idea that a class must be ascertainable in order to be certified. That issue has been discussed, among other places, here, here and here.

The Third Circuit has been gradually trimming back its view of ascertainability, and other Circuits, as well as New Jersey’s Appellate Division, have rejected the Third Circuit’s broad view. Yesterday, the Third Circuit took another positive step, holding by a 2-1 vote that plaintiffs in an employment class action had presented sufficient records to establish that the class could be ascertained. Judge Ambro wrote the majority opinion, in which Judge Restrepo joined. Judge Hardiman dissented. The decision reversed a ruling of the District of New Jersey that had denied class certification due to lack of ascertainability.

The majority opinion made several key points. First, Judge Ambro noted that a renewed motion for class certification (which this was, since a prior motion had been denied) is not to be treated as a (disfavored) motion for reconsideration. Because Rule 23(c)(1)(C) states that “[a]n order that grants or denies class certification may be altered or amended before final judgment,” “District courts should treat renewed motions for class certification as they would initial motions under Rule 23.”

Second, the Third Circuit clarified its previous rulings that “[a]ffidavits, in combination with records or other reliable and administratively feasible means can meet the ascertainability standard.” Here, plaintiffs had produced “thousands of pages of contracts, driver rosters, security gate logs, and pay statements, as well as testimony from a dozen class members” as proof that the class was ascertainable. The District Court, Judge Ambro said, was “too exacting” and failed to accept those proofs. The opinion thus establishes that class plaintiffs have wide latitude to stitch together evidence to satisfy ascertainability.

Third, the majority observed that the District Court had “focused on gaps in the records kept and produced by” the defendant employer in finding that plaintiffs had not shown ascertainability. Judge Ambro made clear that gaps in a defendant’s records are not to be used to penalize plaintiffs. Instead, the majority applied Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1040 (2016) , “to the ascertainability determination at the class-certification stage and hold that where an employer has failed to keep records it was required to keep by law, employees can prove ascertainability by producing ‘sufficient evidence’ to define their proposed class as ‘a matter of just and reasonable inference.’” This blog had suggested that Tyson should be applied to prevent defendants from relying on the absence of their own records to defeat ascertainability.

This opinion of the Third Circuit chips away yet again at the court’s overbroad ascertainability doctrine. It is to be welcomed as one more step toward a more sound and justifiable class action jurisprudence.