Defining or Challenging Class Membership: Evaluating Ascertainability Under New Decisions and Evolving Law

Recording of a 90-minute CLE video webinar with Q&A

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Conducted on Thursday, April 7, 2022

Recorded event now available

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Course Materials

This CLE course will provide class action counsel with guidance for addressing class definitions in light of new and evolving case law about Article III standing, personal jurisdiction, and ascertainability, including the current split among federal circuit courts of appeal over administrative feasibility. The panel will review the most recent cases addressing this critical component for class certification, on which most circuits have weighed in, but have arrived at varying conclusions.

Description

Defining the class and the class claims, issues, or defenses is a prerequisite to obtaining certification and an area of ongoing difficulty for class action practitioners. Parties often raise precertification challenges based on the adequacy of the proposed class definition and the ability to identify class members.

The implied prerequisite of ascertainability requires that a class representative demonstrate that membership in a proposed class can be objectively determined. The circuits, however, split on whether the named plaintiffs must also show that identifying class members is administratively feasible. Defendants frequently challenge the scope of the class definition on grounds that include ascertainability, overbreadth, and fail-safe prohibitions.

Counsel must be mindful of potential challenges to class certification based on the proposed class definition and develop strategies to bring or defeat such challenges.

Listen as our authoritative panel of class action litigators discusses issues that arise in defining and challenging class membership. The panel will discuss the evolving requirement that class membership is ascertainable, the concepts of overbroad and fail-safe classes, and the approaches employed by courts to scrutinize these elements in assessing class certification motions.

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Outline

  1. Ascertainability, including court cases applying the concept;
  2. Administrative feasibility and the current circuit split;
  3. Overbroad class definitions and the impact of uninjured class members at class certification;
  4. The Implications of Article III standing and personal jurisdiction with respect to absent class members and class certification;
  5. The relationship between class definitions and numerosity; and
  6. Best practices for drafting or challenging class definitions

Benefits

The panel will review these and other vital questions:

  • Which circuit applies the most stringent standards for ascertainability, including, but not limited to, administrative feasibility, as a prerequisite to class certification?
  • What precisely makes a proposed class "administratively feasible," and how does that principle apply in different types of class actions (i.e., cases seeking injunctive relief versus cases seeking damages)?
  • How has clarifying what constitutes Article III standing and who must have it in class actions changed how classes are defined and challenged?
  • How have recent Supreme Court decisions about personal jurisdiction impacted how classes are defined and challenged?
  • How can counsel identify and avoid, or challenge, “fail-safe” classes?
  • What strategies exist when class membership is arguably in flux over time?

Faculty

Sparkes, Robert
Robert W. Sparkes, III

Partner
K&L Gates

Mr. Sparkes has extensive experience in complex civil and commercial litigation and regularly represents banking,...  |  Read More

Trask, Andrew
Andrew J. Trask

Of Counsel
Shook Hardy & Bacon

Mr. Trask focuses his practice on class action and complex litigation in various industries, including the automotive...  |  Read More

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Strafford will process CLE credit for one person on each recording. All formats include course handouts.

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