The Supreme Court, in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), set a high standard for class certification under Federal Rule of Civil Procedure 23 (“Rule 23”). Under Rule 23(a), the party seeking certification must demonstrate that: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. Rule 23. Additionally, the proposed class must satisfy at least one of the three requirements in Rule 23(b). Id. In determining whether these requirements are met, the Supreme Court has instructed district courts to conduct a “rigorous analysis,” which frequently “will entail some overlap with the merits of the plaintiff’s underlying claim.” Dukes, 131 S. Ct. at 2551.
Several Circuits also recognize an “implied requirement of ascertainability” in Rule 23. See, e.g., Brecher v. Republic of Argentina, 802 F.3d 303, 304 (2d Cir. 2015); Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 538 (6th Cir. 2012). In essence, among other things, a class must be “sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member.” Brecher, 802 F.3d at 24. A so-called “fail-safe” class is “one that is defined so that whether a person qualifies as a member depends on whether the person has a valid claim,” and thus the existence of the claim “cannot be ascertained until the conclusion of the case, when liability is determined.” Zarichny v. Complete Payment Recovery Servs., 80 F. Supp. 3d 610, 623 (E.D. Pa. 2015); see also Erin L. Geller, The Fail-Safe Class as an Independent Bar to Class Certification, 81 Fordham L. Rev. 2769, 2775 (2013) (noting that “[c]ourts have recognized that class definitions are inadequate when the definition does not allow for an ascertainable class, finding it “axiomatic” that for a class action to be certified a class must exist”). For example, in Zarichny, plaintiffs’ putative TCPA class was comprised of individuals who received telephone calls initiated using an automatic telephone dialing system without the recipient’s “prior express consent,” which the court determined to be a “fail-safe” class. Zarichny, 80 F. Supp. 3d at 625.
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