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In his most recent article published in The Legal Intelligencer, Buchanan Ingersoll & Rooney litigator Kenneth L. Racowski discusses the circuit split between the Seventh and Third Circuits on ascertainability in consumer class actions.

Ascertainability is a necessary prerequisite to a Rule 23(b)(3) class that ensures that a proposed class will actually function as a class. The Third Circuit stands at the center of the current debate on ascertainability, having issued several substantial opinions on the issue in the last three years. In July, the Seventh Circuit sharply criticized and rejected the Third Circuit’s ascertainability test, causing a circuit split on ascertainability that appears destined to be the next class action issue taken up by the Supreme Court.

The Seventh Circuit’s holding in Mullins v. Direct Digital “seems to advocate for a ‘certify now, analyze later’ approach likely to burden parties and the court with time-consuming and costly litigation in cases that otherwise never should have proceeded past class certification.” “Such a result is exactly what Dukes and Comcast have instructed district judges not to do.” 

Read the full article - "Circuits Split on Ascertainability in Rule 23(b)(3) Class Actions" (The Legal Intelligencer, September 29, 2015). Subscription required.