City Select Auto Sales, Inc. v. BMW Bank of North America, 867 F.3d 434 (3d Cir. 2017), involved a putative class action brought by a car dealership against the consumer financing division of an automobile manufacturer and its contractor. The dealership alleged that the financing division sent junk faxes in violation of the Telephone Consumer Protection Act. The United States District Court for the District of New Jersey denied class certification. It determined that there was no reliable and administratively feasible way to determine whether putative class members fell within the class definition. The Third Circuit held that the district court erred in its application of the ascertainability standard to the motion for class certification.

The Third Circuit held that the district court erred in applying the ascertainability standard for two reasons. First, the circuit’s ascertainability precedents do not bar affidavits from potential class members, in combination with a database, from meeting the standard. Id. at 440. Second, because the database was not produced in discovery, plaintiff was unable to show whether the database contained a reliable, administratively feasible method of ascertaining the class. Id. at 440-41.

Finally, the court identified two principal policy rationales for the ascertainability standard—facilitating opt-outs and identifying persons bound by the final judgment—neither of which was implicated in this case. Id. at 441.

Judge Fuentes concurred in the judgment, citing Geoffrey C. Shaw’s note, Class Ascertainability, 124 Yale L.J. 2354 (2015).  Judge Fuentes agreed that based on precedent, plaintiffs must be given a chance to show whether the database and affidavits could produce a reliable and administratively feasible means to determine whether putative class members fall within the class definition. 867 F.3d. at 443 (Fuentes, J., concurring). But he wrote separately to “highlight[] the unnecessary burden on low-value consumer class actions created by [the] circuit's adoption of a second ascertainability requirement.” Id. He noted a split among the circuits, with the Second, Sixth, Seventh, and Ninth Circuits all having rejected an additional requirement, and argued that the Third Circuit should follow suit. Id.

The concurrence cited Geoffrey Shaw’s note for the proposition that only a fraction of class members will ever file claims. Id. at 444 n.9. The concurrence also cited Briseno v. ConAgra Foods, Inc., 844 F.3d 1121 (9th Cir. 2017), which likewise cited Shaw’s note earlier this year.