Auto Finance Company Unable To Shake TCPA Class Action

The Third Circuit recently clarified in important ways its ascertainability standard for class actions under Rule 23 in a case that arose from the efforts of an auto finance company to generate business by marketing efforts directed at automobile dealers. The decision reflects two key findings: (1) that defendants who argue a class is not ascertainable – i.e., that it is not administratively feasible to identify class members – must produce information in their possession regarding putative class members during discovery; and (2) that affidavits from class members, by themselves, do not satisfy the ascertainability standard, but can suffice when combined with other records.

The genesis of the dispute is a 2012 agreement between Creditsmarts, an internet-based "indirect business-to-business lending tree" that helps independent car dealers connect various lenders with potential customers, and BMW Bank of America, Inc. and BMW Financial Services, LLC. BMW offers