By Robert Hickok, Robin Sumner and Lindsay Breedlove (August 22, 2017, 12:04 PM EDT) -- On Aug. 16, the Third Circuit gave the plaintiff a pass for failing to pursue evidence necessary to determine whether its proposed class was ascertainable, and took the opportunity to clarify that affidavits may be used, at least in some circumstances, to establish class membership. In City Select Auto Sales v. BMW Bank of North America, No. 15-3931 (3d Cir. Aug. 16, 2017), the appellate court reversed and remanded a decision denying class certification on ascertainability grounds and directed the lower court to require production of an electronic contacts database that might help determine class membership but that the plaintiff had intentionally agreed not to pursue in class discovery. The Third Circuit strongly suggested that the class should be certified on remand, noting that the class would be circumscribed by the contacts database and could be further whittled by individual affidavits, if necessary....