Class actions are hot right now. Since the U.S. Court of Appeals for the Third Circuit issued its seminal decision in In re Hydrogen Peroxide Antitrust Litigation, 552 F.3d 305, 309 (3d Cir. 2008), and the U.S. Supreme Court issued its opinions in Wal-Mart Stores v. Dukes, 131 S. Ct. 2541 (2011), and Comcast v. Behrend, 133 S. Ct. 1426 (2013), there has been a deluge of case law addressing the level of scrutiny and analysis required when considering the certification of a class under Federal Rule of Civil Procedure 23. In a few weeks, the Supreme Court is set tot hear oral argument on another antitrust class action raising Rule 23(b)(3) certification issues, Bouaphakeo v. Tyson Foods, 765 F.3d 791 (8th Cir. 2014). Yet the most white-hot issue in class actions today is ascertainability.

Ascertainability is a necessary prerequisite to a Rule 23(b)(3) class that ensures that a proposed class will actually function as a class. The Third Circuit stands at the center of the current debate, having issued several substantial opinions on the issue in the last three years. In July, the Seventh Circuit sharply criticized and rejected the Third Circuit’s ascertainability test, causing a circuit split that appears destined to be the next class action issue taken up by the Supreme Court.

‘Heightened’ vs. ‘Weak’ Ascertainability Requirements

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