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Rule 23 does not explicitly require that a court be able to determine who the members are before certifying a class. But judges have found implicit in the Rule a requirement that.
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Say It Isn’t So – Court Certifies Rule 23(b)(3) Damages Class in Data Breach Litigation Thursday, April 15, 2021
CPW has been covering data breach litigations for quite some time, including dismissal of defective data breach complaints and the ongoing federal circuit split regarding Article III standing. Yesterday, for the first time, a court certified a Rule 23(b)(3) class action of individual consumers complaining of a data breach involving payment cards.
See In re Brinker Data Incident Litig., 2021 U.S. Dist. LEXIS 71965 (M.D. Fla. Apr. 14, 2021). According to the court, “[t]hough this class action is not perfectly composed, on balance, the Court finds it to be an appropriate (and perhaps the only) vehicle for adjudication of the claims of Chili’s customers whose personal data was stolen.” The Court here was obviously concerned that class members’ claims would not be pursued without the class vehicle, but the proposed classes must nonetheless
Eleventh Circuit Rejects Administrative Feasibility Requirement: What Does the Future Hold for Ascertainability?
The Class Action Chronicle, courts have struggled to define the ascertainability requirement that is implicit in Rule 23 of the Federal Rules of Civil Procedure. Several courts, including the U.S. Courts of Appeals for the First, Third and Fourth Circuits, have required proof of administrative feasibility
i.e., that the identification of class members will be a manageable process that does not require significant individual inquiry as a prerequisite to class certification. Other courts, such as the U.S. Courts of Appeals for the Second, Sixth, Seventh, Eighth and Ninth Circuits, have rejected that approach, finding that ascertainability does not mandate proof of administrative feasibility.