Ascertainability has long been recognized as an “[i]mplied requirement” for class certification under Federal Rule of Civil Procedure 23. In re Initial Pub. Offerings Sec. Litig., 471 F.3d 24, 30 (2d Cir. 2006). One court has explained that “[a]s a threshold matter, and apart from the explicit requirements of Rule 23(a), the party seeking class certification must demonstrate that an identifiable and ascertainable class exists.” Wolph v. Acer Am. Corp., 272 F.R.D. 477, 482 (N.D. Cal. 2011).
But the parameters of the ascertainability requirement have recently become a hot button issue in the certification of consumer class actions, particularly with respect to low-cost consumer goods. Courts are divided as to whether ascertainability simply requires that the class members can be objectively defined and a process be established to allow them to identify themselves and vouch for their eligibility for relief or, instead, that class members be ascertainable using objective criteria such as company records or proofs of purchase and not self-identification. The U.S. Court of Appeals for the Second Circuit has not yet taken a position on this issue.
