City Select Auto Sales, Inc. v. BMW Bank of North America, et al.

Case Updates

The Third Circuit vacated a lower court’s refusal to certify a TCPA class action. The court held that, as applied to the facts in this case, it was too soon to conclude that there was no administratively feasible and acceptable way to ascertain the class.

The U.S. Chamber and Grocery Manufacturers Association filed an amicus brief before the Third Circuit on the issue of class ascertainability. The brief urged the Third Circuit to reaffirm its position on the necessity of class ascertainability and affirm the district court’s judgment, arguing that it is not practical to determine on a classwide basis which potential plaintiffs were injured by the defendant’s allegedly unlawful conduct. The brief also reminds the Third Circuit that its ascertainability requirement flows directly from, and is compelled by, Rule 23(b)(3). Finally, the brief argues that trial by affidavit and claims-administrator mini-trials are not legitimate substitutes for proper ascertainability.

Jonathan D. Hacker, Jason Zarrow, Anton Metlitsky and Hannah Y. Chanoine of O'Melveny & Myers LLP served as co-counsel for the amici.