Ascertainability & In re Nexium – The Side-Effects Continue
As various contributors to this blog have noted (here, here, and here), a divided panel of the First Circuit adopted a “loose” approach to the ascertainability requirement in In re Nexium Antitrust Litigation. Specifically, while acknowledging that “the definition of [a] class must be ‘definite,’” the majority concluded that this requirement could be satisfied by a claims process by which class members would submit affidavits to show that they were injured. According to the majority, such a process would be sufficiently feasible and protective of the defendants’ Seventh Amendment and due process rights. Judge Kayatta authored a vigorous dissenting opinion, noting the “limitations of using affidavits in the manner proposed by the majority.”
Recently, the District of Massachusetts relied on In re Nexium to find that a proposed class was sufficiently ascertainable under similar circumstances. In that case, In re Asacol Antitrust Litigation, end-payor purchasers of