On October 17, 2016, in Cole v. City of Memphis, the US Court of Appeals for the Sixth Circuit held, in a case of first impression, that ascertainability is not required for class actions certified under Federal Rule of Civil Procedure (FRCP) 23(b)(2) ( (6th Cir. Oct. 17, 2016)).

Lakendus Cole brought a civil rights class action against the City of Memphis. He alleged that its routine practice of "sweeping" the popular entertainment strip of Beale Street at 3 a.m. on weekdays, which involved forcing people to vacate the street and arresting those who did not comply, violated his constitutional right to intrastate travel. The district court certified the class under FRCP 23(b)(2) and found the city's practice to be unconstitutional. The city appealed, arguing inter alia that the district court should not have certified the class under FRCP 23(b)(2) because the precise members of the class were not ascertainable.

The Sixth Circuit affirmed, holding for the first time that there is no ascertainability requirement with respect to FRCP 23(b)(2) class actions. The court acknowledged that there is an implied ascertainability requirement for classes certified under FRCP 23(b)(3), where the class members are entitled to notice and are able to opt out, but reasoned that FRCP 23(b)(2) class actions do not have the same administrative needs. Notice is not required under FRCP 23(b)(2) class actions, as they are designed to provide relief through a single injunction and declaratory judgment. Therefore, ascertaining the specific class members is not necessary. The court noted that the US Courts of Appeals for the Third, Fifth, and Tenth Circuits have also held that ascertainability is not required for 23(b)(2) class actions.