Bloomberg BNA Class Action Litigation Report
November 14, 2014
"Members of the Rule 23
Subcommittee of the Judicial Conference Advisory Committee on Civil Rules
opened the floor to comments from attendees at the ABA's 18th Annual National
Institute on Class Actions in Chicago.
Jeffrey J. Greenbaum, a defense
attorney at Sills Cummis & Gross P.C. in Newark, NJ, argued that ascertainability
should be directly addressed in the rule.
Ascertainability, an implied prerequisite to class certification,
requires that the class be defined by objective characteristics that allow for
class members to be readily identified. Greenbaum clarified that he considers ascertainability a Rule 23(b)(3) damages class concept because it is less necessary to know who the class members are when trying to enjoin certain conduct."