Although the class-action device has been prevalent in the federal courts for decades, there has been a recent surge in case law developing around the requirements for class certification. One of the elements receiving new attention is the requirement of “ascertainability”—essentially, the feasibility and reliability of identifying the potential class members.
The Third Circuit’s recent decision not to reconsider en bancits ruling in Carrera v. Bayer, 727 F.3d 300 (3d Cir. Aug. 21, 2013), has further clarified and significantly strengthened the standard of “ascertainability” necessary for a class action to be certified. The decision has the potential to curtail consumer class-action litigation of dubious value, at least in the Third Circuit, and also underscores the importance of expanded access to interlocutory appeal of class certification decisions.
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