JD Moore
ABSTRACT
“The class action is one of the few legal remedies the small claimant has against those who command the status quo.” –Justice W.O. Douglas.
Since its inception, the class action has provided a means of compensation for plaintiffs whose claims may be too small to litigate individually. For decades, courts have held that any proposed class must be sufficiently defined. That is, proposed classes must be clearly “ascertainable.” The federal circuit courts, however, have recently split as to what standard to apply when determining whether a class is ascertainable. Five circuits now apply a “heightened standard,” while four circuits apply a “weak standard.” The Fifth, Tenth, Federal, and D.C. Circuits have yet to decide on the issue.
The standards differ only slightly, but, most significantly, the heightened standard requires that an administratively feasible mechanism exist by which to verify class claims. The administratively feasible requirement has become the focal point of the circuit split. Proponents of the heightened standard argue that the standard relieves the court from needless and tedious fact-checking. Conversely, critics argue that the heightened standard imposes an unnecessary burden on proposed classes.
This Comment will argue that the heightened standard of ascertainability is an unnecessary hurdle that prevents the class action device from functioning as it is designed. The procedural safeguards already written into Rule 23 of the Federal Rules of Civil Procedure are more than sufficient to ensure administrative efficiency. Moreover, no reason has been provided that sufficiently justifies an administratively feasible requirement. This Comment will ultimately conclude that the Supreme Court should resolve the circuit split by adopting the weak standard of ascertainability.