Class Dismissed: The Dangers of Applying Ascertainability Requirements to Rule 23(B)(2) Class Actions
Volume 93, No. 2, Winter 2021
By Heather Swadley [PDF]

This Comment discusses the current circuit split regarding ascertainability in Rule 23(b)(3) class actions, as well as ascertainability’s proliferation into Rule 23(b)(2) class certification at the district court level. It argues that Rule 23(b)(2) suits structurally differ from the rule 23(b)(3) suits (in which ascertainability is generally a question). Rule 23(b)(2) suits do not involve the same notice and opt-out requirements. Moreover, putative plaintiffs cannot be reliably determined at the outset of litigation because the remedies sought are injunctions or declaratory relief against a defendant’s future actions. Therefore, this Comment proposes that the Advisory Committee on Civil Rules weigh in on this dispute. Specifically, the committee should clarify that an administrative feasibility standard is inappropriate for Rule 23(b)(2) class certification.