Recent Developments in Class Action Law

The two most important unresolved issues in class actions are the standard by which plaintiffs must show an ascertainable class before a lawsuit can be certified for class treatment, and whether a class can be certified if it includes members who have suffered no injury. Federal appellate courts nationwide are sharply divided over these issues, and it remains to be seen whether SCOTUS will step in.

Most federal appellate courts recognize that the existence of an ascertainable class is an essential requirement for the certification of damages in class actions. The Third Circuit held that this standard requires a reliable and administratively feasible method for deciding who falls within the class. The Fourth, Sixth, and Eleventh appear generally aligned with the Third. Under the Constitution, federal courts lack jurisdiction to decide a case unless the plaintiff has standing, a requirement that can be satisfied only when the defendant’s conduct caused concrete injury. Federal appellate courts are divided over how to apply Article III when the class action will include uninjured class members. Does it preclude class certification when the potential class includes absent class members who lack standing because they suffered no injury?

Because federal appellate courts nationwide are sharply divided over these issues, general counsel should encourage their legal teams to preserve the strongest arguments available for the defense on these issues today, and preserve winning arguments that may be available tomorrow if SCOTUS steps in.