Category Archives Ascertainability

Earlier this year, SHB welcomed the addition of complex litigation boutique Grippo & Elden in Chicago.  We were thrilled at the news because of the deep bench of experienced class action lawyers that were joining our firm, extending our presence and expertise to the Windy City.  One of the talented lawyers in our Chicago office, Chris Wray (a former 8th Circuit clerk to the Honorable Duane Benton), tipped us off about a recent decision from the Seventh Circuit may have created a circuit split on the implicit requirement of ascertainability of Rule 23.  He was kind enough to put together the following guest post: Several circuits have recognized an implicit requirement under Rule 23 that a class must be defined clearly and that membership be defined by objective criteria. In addressing this requirement, courts have sometimes used the term “ascertainability.”  Class definitions have failed this requirement when they were too vague or subjective,…

Although this blog is focused on class action decisions originating out of the 8th and 10th Circuits where your humble authors live, we would be remiss not to mention two recent decisions out of the Third Circuit which address Rule 23's long-standing implicit requirement of ascertainability. Earlier this month, in Hayes v. Wal-Mart Stores, Inc., No. 12-2522, 2013 WL 3957757 (3d Cir. Aug. 2, 2013), the court vacated a trial court's decision granting class certification, holding in part that a plaintiff must demonstrate a reliable and administratively feasible method to ascertain the class.  In Hayes, the district court certified a class of consumers who bought extended warranties for "as is" products, as those warranties specifically excluded "as is" products, despite the fact that Wal-Mart had no method for determining how many such warranties were sold.  The Third Circuit, however, reiterated that “if class members are impossible to identify without extensive…

In a thorough per curiam order, the Kansas Court of Appeals emphatically reversed the District Court's order certifying a class of "free gas" users.  In Combs v. Devon Energy Prod. Co., 2013 WL 3867981 (Kan. App. July 26, 2013), the Court of Appeals concluded that the District Court had abused its discretion in certifying a class consisting of resident owners of surface estates burdened with oil and gas leases held by Devon where the leases contained "free gas clauses", ie. clauses entitling the lessor to connect to and draw from any gas well on the land for his or her own use free of charge.  The class had sought a declaration that the free gas clauses in the leases obligated Devon to provide a usable supply of free gas, which it alleged Devon had failed to provide due to pressure and moisture issues. The District Court certified the class under both…

In Hull v. Viega, Inc., 2013 WL 759376 (D. Kan., Feb. 27, 2013), Judge Robinson found herself addressing more questions than she was able to answer. One question she did answer was the timeliness of the Defendants' Motion to Strike the class allegations. This putative class action asserted claims on behalf of owners of homes and buildings with Defendants' brass fittings, and those who had paid for repairs or damages caused by these allegedly defective brass fittings, seeking damages under various states' deceptive trade practices acts, as well as under various common law claims. Defendants raised twenty questions in their Motion to Dismiss, which the Court described as a "scorched earth approach" that was both "multi-layered" and "dismissive" in that it required the Court to independently research various nuances of Nevada law. Defendants' Reply also incorporated rulings and raised new issues from a recent order in parallel action pending in…

In an interesting order, Judge Jackson granted defendant Office Depot’s motion to dismiss the class allegations in a putative class action brought under the TCPA, 42 U.S.C. § 227, alleging the transmission of unsolicited faxes.  Judge Jackson shrugged aside Plaintiff Lindsay Transmission’s protest that the motion to dismiss prior to class discovery was premature, citing Rule 23(c)(1)(A)’s directive to determine the propriety of class certification “at an early practicable time.”   This is of course consistent with the increasing number of courts that have expressed a willingness to dismiss class allegations at an early stage, and the Court may well have been influenced by Office Depot’s affidavit explaining that Lindsay Transmission’s initial nationwide discovery requests would have required more than 2,000 manager hours to interview 1,132 store managers in 1,111 retail stores, a truly expensive fishing expedition. Instead, the District Court mooted the onerous discovery requests by striking the class allegations…

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