Courts across the country are increasingly scrutinizing “ascertainability” at the class certification stage, raising the bar for “proof of purchase” and barring class certification, especially in cases involving low-cost consumer products. New York courts are grappling with this issue, as well. While class actions give consumers a cost-effective mechanism to bring actions for low-cost products, courts are not permitting the low cost of products to relax the requirements demanded by FRCP 23, including ascertainability. Plainly stated, a class action is not viable if members of the class cannot be identified by some objective criteria (and trustworthy methods) such that the court and the parties can determine who will be bound by its resolution. Although the Second Circuit has yet to weigh in, district courts in the Second Circuit have expressed diverging views on the applicability of the ascertainability requirement at the class certification stage in class actions involving low-cost consumer products.
A class action is a procedural device that permits one or more so-called “representative” plaintiffs to prosecute a lawsuit on behalf of a “class” of numerous individuals who allege to have suffered the same wrong as a result of a defendant’s actions or omissions. Claims are not adjudicated on a case-by-case basis, but rather are litigated and decided on a class-wide basis. That is, liability and damages determinations with respect to class representatives are deemed applicable to the class (if one is certified). Among other things, the class action mechanism allows individuals to enforce their rights in circumstances where traditional case-by-case litigation would be impractical, such as when low cost consumer products are at issue and thus the value of the potential recovery for each plaintiff is low, especially when weighed against the cost of litigation.
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