The Subcommittee believes that drafting a formal ascertainability requirement is too difficult; it should try nonetheless.
The final topic the Subcommittee has announced it will examine is the possibility of adopting a formal ascertainability requirement. The topic was suggested by several judges of the Third Circuit, who formally requested the Subcommittee consider a formal ascertainability requirement when dissenting from a refusal to hear a Third Circuit ascertainability case en banc. The specific language of that request:
I suggest that the Judicial Conference’s Committee on Rules of Practice and Procedure look into this matter. Rule 23 explicitly imposes limitations on the availability of class actions. Marcus adds another—that class membership is reasonably capable of being ascertained. If the Committee agrees with that, how easy (or how hard) must this identification be?
Despite this request, the Subcommittee has identified ascertainability as a “back-burner” topic. As it explained in its October 2014 Report:
For current purposes, in light of the likely difficulty of drafting rule provisions on class definition, the question is whether the problems described warrant making the effort.
What are those difficulties? The Subcommittee appears concerned about determining the exact limits of the ascertainability requirement, likely judging it to be a political flashpoint. (I.e., plaintiffs will argue there should be no requirement; defendants will argue for full application of Carrera v. Bayer Corp. At that point, nothing the Subcommittee does will please anyone.)
Despite the fact that there will likely be some controversy, the Subcommittee should move this issue to the front burner. There is remarkable consensus among appellate courts that Rule 23 contains an implicit ascertainability requirement. And, since that requirement is strong enough to support the denial of certification, it should not be implicit. Everyone—plaintiffs, defendants, and courts—would benefit from the clarity an explicit ascertainability requirement would bring. Among other benefits, a common text for reference would be invaluable.
Moreover, a strong ascertainabilty requirement would perform a valuable screening function on class actions. If the plaintiffs cannot define their class without reference to the merits (the common “fail-safe” problem), or if they do not have any feasible way of identifying class members for notice, the proposed class action is likely to be stillborn if certified. Moreover, the lack of a good class definition often speaks to deeper problems with a proposed class action. Identifying these issues sooner rather than later is in everyone’s interest.
This is exactly the kind of high-return work the Subcommittee should be focusing on: rationalizing Rule 23 and ensuring that it remains a vehicle for efficient representative actions.