Reliable Analysis Is Key To Addressing Ascertainability

Law360, December 8, 2016

There has been much discussion about the circuit court split on the ascertainability requirement in class certification. Several circuits, most notably the Third Circuit, have adopted a “heightened” requirement that has made it more difficult for plaintiffs to demonstrate ascertainability of class membership. Other circuits have rejected this heightened standard and have adopted less burdensome requirements for plaintiffs. In an article, “Reliable Analysis Is Key To Addressing Ascertainability,” published in Law360, Analysis Group Managing Principal Stephen Fink examines the issues raised by the split. They note that, given the absence of a US Supreme Court review and decision that might provide guidance on the appropriate standard to apply, it is crucial for both plaintiffs and defendants to offer reliable analyses addressing ascertainability issues at the class certification stage. The authors discuss why such analyses may be presented effectively by expert witnesses, who, they suggest, are often best situated to provide opinions to the court that directly address whether the proposed class can be ascertained in an administratively feasible manner.

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Cacciola S, Fink S