What In-House Counsel Need To Know About Challenging Ascertainability In Class Actions

Perhaps more than any other legal issues a company may face, class action cases are the greatest cause for concern of company counsel. That concern is well-founded. Defense costs are staggering, the settlement values significant, and the very future of the company could be at stake.

Defense strategies opposing class certification have long focused on the explicit requirements of Fed. R. Civ. P. 23, but courts with increasing frequency are denying class certification for plaintiffs' failure to prove that the proposed class is ascertainable. Defendants prevailing at the class certification stage can cripple a plaintiff's case and save a company millions in fees and settlement costs. An early evaluation of the potential effectiveness of an ascertainability argument is an absolute must for any attorney faced with a putative class action.