“Ascertainability” in the context of civil litigation involves the identification of individuals who qualify for membership in a putative class action. Although not an explicit requirement under Rule 23, since the US Court of Appeals for the Third Circuit refused to certify a class due to difficulties in objectively and efficiently identifying class members in Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013), lower federal courts have been sharply divided over the meaning and extent of the ascertainability requirement for certifying a class.1 The ascertainability issue has taken on particular importance in low-value consumer class actions involving inexpensive retail products, as these cases have become an increasing burden for manufacturers, distributors, and retailers in the current litigation environment—involving a flood of class actions over labeling on consumer products.

Unfortunately, especially for companies that operate nationwide, the US Supreme Court has not yet intervened in this quagmire. After having denied certiorari in two cases last term that addressed ascertainability, the next spate of cases from the Ninth Circuit likely will not ripen for consideration by the Supreme Court until the 2017 Term. Thus, uncertainty and forum-shopping by plaintiffs’ lawyers exploiting the split among the courts are likely to persist for the foreseeable future.

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Please note that this Legal Backgrounder is presented for informational purposes only and it is not intended to be construed or used as general legal advice nor as a solicitation of any type.

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Photo of David E. Sellinger David E. Sellinger

David E. Sellinger focuses his practice on complex civil litigation matters, including class action defense, trial in federal and state courts, and in arbitrations. He has over thirty years of litigation experience in which he has represented corporate and individual clients in a

David E. Sellinger focuses his practice on complex civil litigation matters, including class action defense, trial in federal and state courts, and in arbitrations. He has over thirty years of litigation experience in which he has represented corporate and individual clients in a broad array of lawsuits. David has represented corporations sued in class actions brought in both state and federal courts involving claims for consumer fraud, product liability, and violations of various state and federal statutes. He has handled cases in multi-district litigation (MDL) proceedings. In addition, he is currently involved in overseeing product liability class actions throughout the country for a national retailer as a member of GT’s team serving as the client’s national coordinating counsel for class actions. In the past, David also has represented institutional investors as plaintiffs in class actions involving claims of securities fraud and breach of fiduciary duty.

David has handled an array of shareholder disputes and business torts matters, as well as patent damages litigation. As a trial lawyer, David is willing to try cases where the client’s interests call for trial but has also resolved and narrowed litigation before trial. David brings his experience to bear in finding cost-effective resolutions of litigation matters. A former Assistant United States Attorney, he also represents clients in white-collar criminal matters, including parallel criminal, civil, administrative proceedings and internal investigations. He has written and spoken on various litigation topics, including the defense of class action litigation.

Photo of Aaron Van Nostrand Aaron Van Nostrand

Aaron Van Nostrand focuses his practice on general and complex litigation on behalf of clients of all sizes. He has wide-ranging experience in commercial litigation and class action defense, as well as breach of contract, fraud and breach of fiduciary duty, product liability,

Aaron Van Nostrand focuses his practice on general and complex litigation on behalf of clients of all sizes. He has wide-ranging experience in commercial litigation and class action defense, as well as breach of contract, fraud and breach of fiduciary duty, product liability, consumer finance, pharmaceutical licensing, real estate and oppressed shareholder litigation. Aaron also litigates and counsels clients in franchise disputes. He represents franchisors in litigation against franchisees involving claims of breach of contract, fraud and consumer fraud, tortious interference, and violation of various state franchise laws. He also regularly represents franchisors in litigation and disputes against third parties in a variety of contexts, such as real estate, construction, and consumer fraud. In addition, he helps clients pursue alternatives to litigation. In recent years, he has served as counsel in individual and class cases in California, Connecticut, Florida, Georgia, Maryland, Massachusetts, New Jersey, Ohio and Texas.