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Objectors, Cy Pres Possible Targets for Changes by Rule 23 Advisory Committee

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."