Two Recent Opinions Reflect Important Developments in Heightened Ascertainability for Class Certification

“Ascertainability”-that is, whether class members can be ascertained with administrative efficiency-continues to develop as a significant issue in class certification. Two recent opinions, Brecher v. Republic of Argentina, No. 14-4385, 2015 U.S. App. LEXIS 16493 (2d Cir. Sept. 16, 2015), in which the Second Circuit adopted ascertainability as a separate class-certification requirement, and In re Processed Egg Products Antitrust Litigation, No. 08-md-2002, 2015 U.S. Dist. LEXIS 124799 (E.D. Pa. Sept. 18, 2015), in which the court applied what has been called “heightened ascertainability” within the Third Circuit, demonstrate how the developing law on ascertainability can impact a class certification outcome. Ascertainability, though, is not necessarily developing uniformly or consistently as a distinct class certification requirement. Significantly, the Seventh Circuit has expressly rejected the concept. It has even come under criticism from judges within the Third Circuit. For practitioners, it is therefore critical to know the law of the circuit in which you are litigating and to continue to closely monitor developments in ascertainability.

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