Is Your Putative Consumer Class Ascertainable? The 7th Circuit Suggests It Doesn't Really Matter At The Certification Stage

Class action plaintiffs have a new reason to file suit in the Seventh Circuit. In Mullins v. Direct Digital, LLC, 795 F.3d 654 (7th Cir. 2015), the Seventh Circuit refused to follow the Third Circuit's imposition of a heightened "ascertainability" requirement at the class certification stage. The Seventh Circuit affirmed the district court's certification of the consumer class and held that the plaintiffs did not have to prove at the class certification stage that there was a "reliable and administratively feasible" way to identify class members.The Seventh Circuit's ruling contributes to a growing divide among the circuits over how to ascertain a class under Rule 23's implicit requirement that a class must be defined clearly and that class membership must be defined by objective criteria.