City Select Auto Sales v. BMW Bank — class action — reversal — Scirica

If you were to make a list of the most significant things the Third Circuit has done in recent years — or the most controversial — you’d probably include its creation of the “ascertainability” requirement for class certification. The ascertainability requirement obligates plaintiffs seek to proceed with certain class actions to show that the class is objectively defined and that there’s a “reliable and administratively feasible” way to figure out who’s in the class. Since creating the requirement in 2012, the court has issued several major opinions refining it, while Judge Rendell has called for abandoning it.

Today the Third Circuit revisited the ascertainability issue again, vacating a district court’s ruling that relied on it to deny class certification. The court explained:

In this case, we will vacate and remand for two reasons. First, our ascertainability precedents do not categorically preclude affidavits from potential class members, in combination with the Creditsmarts database, from satisfying the ascertainability standard. Second, because the Creditsmarts database was not produced during discovery, plaintiff was denied the opportunity to demonstrate whether a reliable, administratively feasible method of ascertaining the class exists based, in whole or in part, on that database.

Joining Scirica were Krause and Fuentes. Fuentes also concurred to join Rendell’s earlier call to reject the ascertainability requirement, noting that three circuits have rejected it and arguing that it creates an unnecessary burden for low-value consumer class actions.

Arguing counsel were Philip Bock of Chicago for the putative-class plaintiff, Julia Strickland of Los Angeles for 2 defendants, and William Hayes III of Denver for a third defendant.

UPDATE: Alison Frankel of Reuters has this outstanding analysis of today’s case and what it means for the larger battle over ascertainability.