Ascertainability is such an interesting little concept. While the Eleventh Circuit recently did away with it (sort of) the requirement that class members be identifiable via administratively feasible means before a case can be certified is still alive and well in some circuits.
Take the Fourth Circuit, for instance.
In Katz v. Capital Med. Educ., Civil Action No.: 3:20-cv-02524-JMC, 2021 U.S. Dist. LEXIS 147830 (D. S.C. August 6, 2021) the Court refused to certify a JUNK FAX case against a DEFAULTED defendant because the Plaintiff had failed to demonstrate ascertainability.
As we’ve reported in the past, defaulting is generally a pretty bad idea in a TCPA class action. But here the strategy of “playing dead” seems to be working. For now at least.
The issue in Katz was Plaintiff’s failure to demonstrate who actually received the faxes at issue. While it should be emphasized that a Plaintiff does not need to identify class members at the pleadings stage–and, as such, CLASS DATA SHOULD NEVER BE REQUIRED PRE-CERTIFICATION–the Plaintiff does need to demonstrate a method for identifying class members post-certification as a condition of certification.
In Katz the Plaintiff didn’t do that: “[Plaintiff] did not suggest any method for the court to determine the identity of the recipients of [Defendant’s] fax.” So the Court denied certification although all of the other Rule 23 factors were met.
Take aways: TCPA class action litigators should always be mindful of the “implied” ascertanability rules. They can prove a considerable hurdle, even in a case involving a defaulted defendant.
Happy Monday TCPAWorld.
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