Implied Class Warfare: Why Rule 23 Needs an Explicit Ascertainability Requirement in the Wake of Byrd v. Aaron’s Inc.

Abstract

On April 16, 2015, in Byrd v. Aaron’s Inc., the U.S. Court of Appeals for the Third Circuit articulated its heightened standard for Rule 23’s implied requirement that a class be ascertainable. This standard has proven to frustrate Rule 23’s historical purpose of providing small-claim plaintiffs a mechanism through which they can economically prosecute their rights, especially in the context of consumer class actions. The Seventh Circuit Court of Appeals has rejected the heightened standard introduced by the Third Circuit in favor of a “weak” interpretation of Rule 23’s implied ascertainability requirement. This Comment argues that Rule 23 needs to be amended to explicitly include ascertainability as a requirement to class certification so that the certification process can be adjudicated consistently in federal courts. Further, this Comment argues that modeling such an amendment on the Seventh Circuit’s “weak” version of the implied ascertainability requirement will best return Rule 23 to its historical purpose.