Third Circuit: Speculation about the Scope of the Class Is Insufficient for Certification under FRCP 23(a) | Practical Law
In Hayes v. Wal-Mart, a consumer class action against Sam's Club, the US Court of Appeals for the Third Circuit held that mere speculation about who the members of a class are does not meet the plaintiff's burden to prove by a preponderance of the evidence that the ascertainability and numerosity requirements of FRCP 23(a) are satisfied, even when the defendant's incomplete recordkeeping contributes to the difficulty of gathering the necessary evidence.