The Great Class Action Ascertainability Debate

By Amanda Lawrence and Michael Rome (August 14, 2017, 12:47 PM EDT) -- In recent years, courts have divided sharply over whether or not Rule 23 of the Federal Rules of Civil Procedure creates an implicit requirement that a class must be ascertainable in order to be certified. This article addresses the meaning of ascertainability, the circuit split over whether and to what extent it is required, and implications of the ascertainability circuit split for class action litigants.

What is Ascertainability? Assessing the Growing Circuit Split

In addition to the Rule 23(a) and 23(b) requirements for class certification, most circuit courts have recognized another implicit requirement that must be met before a Rule 23(b)(3)...

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