Ascertainability Does Not Bar Class Action Settlement Where Parties Agree That the Class is Ascertainable

In re Comcast Corp. Set-Top Cable Television Box Antitrust Litig., 2016 U.S. App. LEXIS 16135 (3d Cir. Aug. 31, 2016).  It is not often that the Third Circuit summarily reverses a decision in a class action case.  This brief opinion by Judge Krause did just that.

The District Court had rejected a settlement of this class action on the grounds that the proposed class was not ascertainable.  Ascertainability has been a bugaboo in the Third Circuit for the past several years, as discussed (among other places) here.  In the present case, however, the parties agreed that the class was in fact ascertainable.  Plaintiffs appealed the denial of settlement approval, and Judge Krause noted that “the parties do not dispute that the District Court erred” in declining to approve the settlement based on ascertainability.

The remainder of Judge Krause’s opinion read as follows: “The concern  that a defendant ‘be able to test the reliability of the evidence submitted to prove class membership,’ Carrera v. Bayer Corp., 727 F.3d 300, 307 (3d Cir. 2013), is not implicated by this case, where the defendant has agreed that the evidence regarding class membership is sufficiently reliable.  Similarly, the concern that “[t]he method of determining whether someone is in the class … be administratively feasible,’ id., is not implicated by this case, because the settlement agreement removes the need for a trial.  See Sullivan v. DB Investments, Inc., 667 F.3d 273, 335 (3d Cir. 2011) (Scirica, J., concurring).”

The Third Circuit has been gradually retreating from its misguided ruling in Carrera, including, most recently, in Byrd v. Aaron’s, Inc., 784 F.3d 154 (3d Cir. 2015).  Judge Krause’s opinion here makes clear that ascertainability is an argument that is available only to a defendant in opposing class certification, and that when a defendant concedes ascertainability, a court (and, almost more importantly, objectors to class action settlements, who grasp at any straw, as discussed here) cannot rely on alleged lack of ascertainability to defeat a settlement.  Though this opinion has not been designated precedential, it has important consequences nonetheless.

The panel did not mandate that settlement class certification be granted or that the settlement be approved.  Instead, the matter was remanded to the District Court for further proceedings.