City Select Auto Sales Inc. v. BMW Bank of North America Inc., 2017 U.S. App. LEXIS 15365

Background

Creditsmarts operated an online lead-referral system used by independent auto dealers; BMW contracted with Creditsmarts to market its up2drive financing program to dealers.
In late 2012 Creditsmarts used WestFax to send marketing faxes bearing BMW/up2drive branding to lists generated from Creditsmarts’s database; WestFax did not retain recipient lists.
City Select received one such fax and sued under the TCPA and state conversion laws, seeking Rule 23 class certification for dealerships in the Creditsmarts database with fax numbers sent BMW faxes between Nov. 20, 2012 and Jan. 1, 2013.
Creditsmarts’s full database as of December 2012 was not produced in discovery (preserved only by Feb. 2014); the magistrate judge denied an early motion to compel the full database and City Select did not pursue an immediate appeal of that denial.
The district court denied class certification solely on ascertainability grounds, finding no reliable, administratively feasible way to determine which database entries actually received the BMW fax.
The Third Circuit vacated and remanded, holding the district court erred in concluding affidavits plus the Creditsmarts database could never satisfy ascertainability and directing production of the database (subject to protections) for further fact-specific analysis.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether class is ascertainable under Rule 23(b)(3)	Class limited to dealers in Creditsmarts database with fax numbers can be identified using that database plus affidavits/other records	Database is over-inclusive and there is no objective way to tell who actually received the BMW fax	Vacated and remanded: district court erred to rule affidavits+database categorically insufficient; more discovery (database production) needed
Whether affidavits alone can satisfy ascertainability	Affidavits combined with records can reliably identify recipients	Affidavits alone are unreliable and susceptible to fraud/overbreadth	Affidavits alone insufficient; but affidavits in combination with records may satisfy ascertainability depending on facts
Whether district court properly denied production of Creditsmarts database	City Select argued database is central to showing a reliable, feasible identification method	Creditsmarts claimed proprietary interests; magistrate restricted early production	Third Circuit ordered production on remand (with protective measures) because denial deprived plaintiff of chance to show a feasible method
Proper standard for class-certification-stage proof of membership records	Need not show dispositive single record at certification; must show objective criteria and a reliable, administratively feasible mechanism	Demanded proof that faxes were sent to each database entry before certification	Third Circuit reiterated that plaintiff bears burden by preponderance but need only show class members can be identified, not that identification is conclusive at certification stage

Key Cases Cited

Marcus v. BMW of N. Am. LLC, 687 F.3d 583 (3d Cir. 2012) (introduced two-part ascertainability inquiry: objective criteria plus administratively feasible identification)
Byrd v. Aaron’s Inc., 784 F.3d 154 (3d Cir. 2015) (affidavits alone unreliable; affidavits plus records may satisfy ascertainability)
Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013) (ascertainability requires objective criteria and feasible method; remanded for further fact inquiry)
Hayes v. Wal-Mart Stores, Inc., 725 F.3d 349 (3d Cir. 2013) (class definitions requiring multiple factual inquiries can defeat ascertainability absent feasible methods)
In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305 (3d Cir. 2008) (standard of review for class-certification factual findings and abuse of discretion review)
Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) (Rule 23(a) and (b)(3) requirements including predominance and superiority)