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The ascertainability requirement in a class certification analysis serves several important objectives. First, it eliminates serious administrative burdens that are incongruous with the efficiencies expected in a class action by insisting on the easy identification of class members. Second, it protects absent class members by facilitating the best notice practicable under Fed. R. Civ. P. 23(c)(2) in a Rule 23(b)(3) action. Third, it protects defendants by ensuring that those persons who will be bound by the final judgment are clearly identifiable. Ascertainability is needed for properly enforcing the preclusive effect of final judgment. The class definition must be clear in its applicability so that it will be clear later on whose rights are merged into the judgment, that is, who gets the benefit of any relief and who gets the burden of any loss. If the definition is not clear in its applicability, then satellite litigation will be invited over who was in the class in the first place.
Plaintiff Jeffrey Marcus leased a BMW convertible equipped with four Bridgestone RFTs. Unfortunately, he experienced four "flat" tires during his three-year lease. While they worked as intended, plaintiff claimed the RFTs were defective because they were highly susceptible to damage and failed at a significantly higher rate than other tires, could not be repaired, and were very expensive. Plaintiff sued Bridgestone Corporation, Bridgestone Americas Tire Operations, LLC ("BATO") (together "Bridgestone"), and BMW of North America, LLC ("BMW"), asserting consumer fraud, breach of warranty, and breach of contract claims. The district court certified plaintiff’s suit under Federal Rule of Civil Procedure 23(b)(3) as an opt-out class action brought on behalf of all purchasers and lessees of certain model-year BMWs equipped with Bridgestone RFTs sold or leased in New Jersey with tires that "have gone flat and been replaced."
Did the district court correctly certify plaintiff’s suit as an opt-out class action?
Inter alia, the appellate court held that, the definition of the certified class was not clear and precise, and the certification order did not define the claims, issues, or defenses at all. In addition, the proposed class raised serious ascertainability issues. The court could only speculate as to how many of the seller's cars were purchased or leased in New Jersey with these specific tires that had gone flat and been replaced. The district court's ruling based on "common sense" could not support a numerosity finding. Moreover, while commonality and typicality posed no problem, to the extent plaintiff relied on the cost of replacing his tire as his ascertainable loss, his claims could not meet the predominance requirement because determining whether each tire failed as a result of the allegedly concealed defect or as a result of unrelated would devolve into numerous mini-trials.