This appeal from the denial of a motion for class certification involved several issues. Public Citizen filed an amicus brief to address only one: ascertainability. “Ascertainability” is the term used by the courts to describe the concern that a class definition be clear and stated in objective terms. Although the term and the concept it has come to embody appear nowhere in Rule 23, several courts, following the decision in Carrera v. Bayer, 727 F.3d 300 (3d Cir. 2013), have expanded the meaning of ascertainability and elevated it to a requirement for class certification. Concerned about the recent transformation of ascertainability and its potential to eliminate consumer class-actions for the small-dollar claims for which the class-action device is most needed, Public Citizen, on behalf of itself and the Center for Science in the Public Interest, filed an amicus brief to explain why, in cases where class-member identification would be imperfect, the approach of the district court here would make the class-action device effectively unavailable in a case where the value of each class member’s claim is small. Thus, under the district court’s view of ascertainability, the alternative to a modicum of rough justice would be no justice at all, because an economically rational individual would not bring an individual suit.
The Ninth Circuit stayed the appeal pending the Supreme Court’s decision in Microsoft v. Baker, which posed the issue whether plaintiffs could voluntarily dismiss a case in the district court after an order denying a motion seeking class certification and then appeal that order. After the Supreme Court’s held that an appeal was not permissible in that circumstance, the plaintiffs in Jones voluntarily dismissed their appeal.