The Third Circuit will once again address its strict ascertainability requirement for class certification in the case In re Niaspan Antitrust Litigation. In a renewed motion for certification that sought to address the district court’s ascertainability concerns, the End Payor Plaintiffs in Niaspan omitted consumers from their proposed class definition and excluded six categories of potential class members. However, in its second opinion denying class certification, the district court held that plaintiffs failed to prove a feasible methodology for identifying class members that would not require individualized fact-finding. 

Though numerous district courts within the Circuit have addressed proving ascertainability in pharmaceutical pricing litigation, Niaspan will be the Third Circuit’s first foray into this area, which may offer more clarity on acceptable expert methodologies for identifying purchasers and payors of pharmaceutical drugs. The challenge for plaintiffs in these cases is creating reliable, feasible, and not prohibitively expensive methods for merging data from numerous sources and systematically applying the class definition and any exclusions. 

The Third Circuit’s Ascertainability Requirement

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