Antitrust and Consumer Protection
Competition: Spring 2017, Vol 26, No. 1
Content
- Antitrust, Ucl and Privacy Section Executive Committee 2016-2017
- Assessing Damages In Privacy Cases: a Panel Discussion With Andrew Serwin, Jay Edelson and Garrett Glasgow
- Below-cost Pricing: Recent Defense-friendly Decisions
- California Antitrust and Unfair Competition Law Update: Procedural Law
- California Antitrust and Unfair Competition Law Update: Substantive Law
- Chair's Column
- Criminal Antitrust Enforcement During the Obama Administration
- Editor's Note
- Golden State Institute's 26th Anniversary Edition
- In re: Cox Enterprises, Inc. Set-top Cable Television Box Antirust Litigation: a Panel Discussion With Trial Counsel
- Keynote Address: a Conversation With California Supreme Court Justice Carol a. Corrigan
- Making the Intangible Concrete: Litigating Intangible Privacy Harms In a Post-spokeo World
- Managing Antitrust and Complex Business Trials: a Discussion With Three Federal District Judges
- Roundup of 2016 Federal Antitrust and Privacy Court Decisions
- United States Vab Electroluxand General Electric Company: a Panel Discussion With Trial Counsel
- The Critical Importance—or Complete Irrelevance—of Class Ascertainability In the Class Certification Decision, and the Unacceptable Circuit Split
THE CRITICAL IMPORTANCE—OR COMPLETE IRRELEVANCE—OF CLASS ASCERTAINABILITY IN THE CLASS CERTIFICATION DECISION, AND THE UNACCEPTABLE CIRCUIT SPLIT
By Geoffrey Holtz and Nitin Jindal1
I. INTRODUCTION
In the last several years, nine federal courts of appeal have weighed in on whether determining the "ascertainability" of the proposed class is a relevant consideration at the class certification stage of a Rule 23(b)(3) damages case. This issue generally arises where the proposed class is large and disbursed, such as a class of retail consumers who purchased a product at a price that is alleged to have been elevated due to unlawful conduct, a claim that often arises in the context of antitrust or consumer fraud claims.
The circuit courts have diverged significantly on the issue of whether, as a component of the consideration of class certification under Rule 23 of the Federal Rules of Civil Procedure, a district court must determine whether the proposed class is "ascertainable"—i.e., whether the class is defined such that one can objectively determine who is a member, and whether there is an administratively feasible method to make that determination and provide notice to the class members as required by the Due Process Clause. Certain circuits have held that a class may not be certified unless the plaintiff demonstrates that the class is ascertainable, while other circuits have held that this is not a relevant consideration at all at the class certification stage.