2016 Mitigating Risk: Key Litigation Developments - Consumer Class Actions >> "Ascertainable" Class Members In Consumer False Advertising Actions

Consumer class action lawsuits often unfold into protracted and expensive cases, regardless of merit. In 2015, companies spent approximately $2.1 billion defending class actions, with consumer class actions being the largest category of those cases.

Courts have shown increasing receptivity to the argument that a consumer class action should not proceed where the plaintiff cannot demonstrate a reliable and efficient method for identifying or “ascertaining” the members of the potential class. This “ascertainability” requirement protects absent class members by ensuring that they get notice of the action and protects defendants by enabling them to challenge the class and obtain finality on the matter when the case is resolved. Defendants have been increasingly successful in arguing that a court should not permit a class action to proceed when it is based on the purchase of an inexpensive product or an allegedly false advertisement and the plaintiff is unable to satisfy