Illinois Appellate Court Quietly Weighs in on Ascertainability Requirement in Class Actions

In federal courts, much ink has been spilled on the role of “ascertainability” in the class certification analysis under Rule 23.  While federal courts generally agree that such a requirement implicitly exists, views differ on what it actually means, as well as the weight it should carry in determining whether a class can be certified.

In brief, the majority of federal circuit courts—including the Seventh Circuit—have found that an “ascertainable” class is simply one that is defined by “by objective criteria rather than by, for example, a class member’s state of mind.”  In other words, the class definition must identify a particular group, harmed during a particular time frame, in a particular location, in a particular way.

The Third Circuit, however, has articulated a “heightened” ascertainability standard, requiring putative class plaintiffs to demonstrate a “‘reliable and administratively feasible’ way to identify all who fall within the class definition.”  This heightened requirement has led to denial of class certification where the defendant lacked records from which class membership could be readily determined.  In rejecting this heightened ascertainability approach, the Seventh Circuit noted that it has the “effect of barring class actions where class treatment is often most needed: in cases involving relatively low-cost goods or services, where consumers are unlikely to have documentary proof of purchase,” which “are cases where the class device is often essential to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights.”  The Court further observed that the heightened ascertainabilty requirement “effectively immunizes defendants from liability because they chose not to maintain records of the relevant transactions.”

Despite the prolonged debate amongst federal courts, Illinois appellate courts have remained silent on the issue—at least, that is, until just after Christmas 2024.  In the unpublished decision Savett v. SP Plus Corp., 2024 IL App (1st) 230931-U, the First District Appellate Court cited the Seventh Circuit’s view, stating that “[a]scertainability means that the class must be ‘defined clearly and based on objective criteria’,” and noting that “[t]he possibility that some class members might not have been harmed . . . does not preclude class certification.”  The Court went on to state that “a plaintiff is not required to identify every potential class member at the class certification stage.”

There are no Illinois court opinions citing this decision as yet.  It will be interesting to see how this decision impacts ascertainability arguments in Illinois state courts going forward.