The opioid MDL court (the Northern District of Ohio) recently denied class certification to plaintiffs seeking class certification as guardians of individual children diagnosed at birth with neonatal abstinence syndrome (NAS). The court noted that these children are sometimes referred to colloquially as “NAS babies.” The primary basis for the court’s denial of class certification was its determination that the proposed class failed the test of ascertainability as ... Keep Reading »
Ascertainability Class Action Articles
The latest class action developments and trends in ascertainability, including news, key cases, and strategies.
Third Circuit Ascertainability Requirement Satisfied in FDCPA Class Against Law Firm
Our prior blogs have discussed the Third Circuit’s “rigorous” ascertainability requirement for 23(b)(3) classes here and here. We have also explored how district courts in the Circuit, such as the Eastern District of Pennsylvania, have denied certification in reliance on that heightened standard. A recent E.D. Pa. opinion demonstrates that all is not lost for putative Third Circuit class actions when the proposed class is readily ascertainable based on objective criteria ... Keep Reading »
Despite Second Shot at Ascertainability Post-Petrobras, Renewed Motion to Certify Falls Flat on Predominance Grounds
Royal Park, an investment company, recently suffered its second defeat in its attempt to certify a class action against Deutsche Bank regarding bond-like instruments collateralized by mortgages held in trusts entitling instrument-holders to the mortgages’ cash flow for various contractual and common law claims. The Southern District of New York denied Royal Park’s first motion to certify on the grounds the proposed class was insufficiently ascertainable, finding it was ... Keep Reading »
Sorry, But Your Credit Card (Class Action) Has Been Declined
The Eastern District of New York recently declined to certify a putative class action filed by merchants against the four major credit card providers alleging antitrust violations. The complaint alleges that MasterCard, Visa, Discover, and American Express (“Amex”) conspired by adopting the same liability policy for fraudulent charges with chip-enabled credit cards by shifting liability from banks to merchants and implementing the policy on the same day to reduce ... Keep Reading »
Third Circuit Ascertainability Requirement Puts the Squeeze on Orange Juice Purchasers
A New Jersey district court denied certification to a putative class of Tropicana orange juice purchasers from “Members Only” or “Loyalty Card” stores in California, New York, New Jersey, and Wisconsin. The plaintiffs alleged various common law and statutory consumer protection causes of action based on Tropicana’s alleged false marketing of its orange juice as “all natural.” The court found that the plaintiffs satisfied the four certification requirements of Rule 23(a) ... Keep Reading »
Circuit Court Finds Putative Class Affidavits, Combined With Other Records, May Satisfy Ascertainability Requirement
Defendants BMW and Creditsmarts were parties to a marketing agreement through which BMW offered its direct automotive “up2drive” loans to borrowers at participating independent car dealers through Creditsmarts’ internet-based business-to-business lending platform. Creditsmarts used a third party, Westfax, to fax over 20,000 advertisements to independent car dealers during a 30-day period. Plaintiff City Select Auto Sales received one of these faxes and brought a putative ... Keep Reading »
Objectively Non-Flushable? The Northern District of California Certifies Consumer Class Regarding Charmin Freshmates
Using the familiar “reasonable consumer standard” that applies in many jurisdictions regarding allegedly deceptive sales practices, a judge of the Northern District of California recently certified a class action of California consumers who purchased Charmin/Proctor & Gamble’s “Freshmates” brand of “flushable” bathroom wet-wipes between April 6, 2011, and August 3, 2017. The class claims centered on the allegation that Freshmates were not “flushable” as advertised ... Keep Reading »
Second Circuit Clarifies Ascertainability Rule, Rejecting “Heightened” Standard of Administrative Feasibility
The Second Circuit recently rejected the "heightened" ascertainability requirement under Rule 23(b)(3), turning aside a challenge to a district court's certification of a securities fraud class action. Instead, the court chose to follow the Sixth, Eighth, and Ninth Circuits by adopting an ascertainability standard that only requires "that a class be defined using objective criteria that establish a membership with definite boundaries." A district court certified two ... Keep Reading »
Lease-Termination Fee Class Fails Third Circuit Ascertainability Requirement
Using the Third Circuit’s comparatively robust ascertainability standard, the United States District Court for the Eastern District of Pennsylvania recently denied certification of a class of tenants allegedly charged an improper lease-termination fee and subjected to collections calls in violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. In its order, the district court explained that under the Third Circuit’s ascertainability precedent, ... Keep Reading »
A Damages Class Is Certified, but No Standing for Declaratory and Injunctive Class
A representative plaintiff who purchased Aveeno sunscreen products and baby bath products brought putative class actions against the products’ manufacturer, Johnson & Johnson, in the United State District Court for the District of Connecticut. Both of plaintiff’s asserted classes challenged Aveeno’s product labeling under the Connecticut Unfair Trade Practices Act (CUTPA) and the similar consumer protection laws of several other states and the District of ... Keep Reading »
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