We have blogged before about the Third Circuit’s demanding “ascertainability” standard for class certification, which poses a class-action barrier unsupported by the rule. See here, here, and here. The Third Circuit yesterday issued another opinion on the topic, this time in a case brought under the Telephone Consumer Protection Act called City Select Auto Sales, Inc. v. BMW, available here.
Judge Scirica authored the opinion that established the Third Circuit’s current position on ascertainability, Carrera v. Bayer, and he authored City Select as well. His opinion for the court reiterates aspects of some of his earlier statements on the ascertainability standard, but yesterday's opinion makes clear that “[a]ffidavits, in combination with records or other reliable and administratively feasible means, can meet the ascertainability standard.”
Concurring, Judge Fuentes reiterated a statement made by Judge Rendell in an earlier case: that until the Third Circuit revisits the issue en banc, it will be administering “the ascertainability requirement in a way that contravenes the purpose of Rule 23 and, in [his] view, disserves the public.”