Ascertainability in the Third Circuit: Name That Class Member

The 1966 amendment of Rule 23 provided plaintiffs with an extremely powerful procedural device. Since then, much controversy has surrounded Rule 23. Judges have often shown hostility towards certification of frivolous class actions that result in large fees for attorneys but little recovery for class members. The Third Circuit has recently used the requirement that a class be ascertainable to create an extremely high bar for certification of small-claims consumer class actions. Such class actions in the Third Circuit are essentially fruitless unless a plaintiff can individually identify all potential class members prior to class certification. The Third Circuit is the first circuit court to use ascertainability to create a bar to class certification. Class certifications will vary widely depending on whether or not the circuit in which the class action is brought has adopted the Third Circuit’s interpretation of ascertainability