In a recent case, Mullins v. Direct Digital, LLC, the Seventh Circuit affirmed the district court's certification of a class of plaintiffs who sought to sue the defendant for fraudulently advertising a therapeutic supplement. The opinion noted that "some courts" (most notably the Third Circuit) have "raised the bar for class actions" under Federal Rule of Civil Procedure 23(b)(3) by imposing an "ascertainability requirement"--that is, a requirement that there be a "reliable and administratively feasible way to identify all who fit within the class definition." 

In resolving the appeal, the court relied upon a recent Note, Class Ascertainability, published in Volume 124 of the Journal. In his piece, Geoffrey Shaw (YLS '16) argues that the so-called "ascertainability requirement" cannot be reconciled with either the text or the purpose of Rule 23, and he urges courts to abandon the requirement in favor of "a rigorous analysis of Rule 23's explicit requirements." The Mullins opinion both cited Geoff's Note and heeded his call to reject the ascertainability requirement.

Preferred Citation: Geoffrey C. Shaw, Note, Class Ascertainability, 124 Yale L.J. 2354 (2015).