MERINO v. WELLS FARGO & COMPANY, 2:16-cv-07840

Plaintiffs Merino and Morel are former hourly Wells Fargo employees who allege they were required to meet quarterly new-account quotas and to solicit accounts off-site and outside normal hours.
Plaintiffs claim managers collected "Off Site Sheets," held daily huddles tracking "solutions," and directed employees not to record off-site solicitation time in Time Tracker.
Plaintiffs allege they (and others) routinely worked overtime off the clock and were not paid overtime in violation of the FLSA and the New Jersey Wage and Hour Law (NJWHL); Merino seeks to represent a Rule 23 NJWHL class for New Jersey hourly employees.
Defendants moved under Fed. R. Civ. P. 12(f) and 23(d)(1)(D) to strike the Rule 23 class allegations, arguing the class is unascertainable and impermissibly "fail-safe."
The district court reviewed applicable Third Circuit ascertainability law and denied the motion to strike without prejudice, concluding the problems raised could not be resolved on the face of the complaint and were better addressed at class-certification after discovery.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Ascertainability of class membership	Plaintiffs say Wells Fargo records (payroll, quotas, Off Site Sheets, "solutions" reports) can objectively identify class members	Wells Fargo says members worked off the clock and didn’t report hours, so corporate records cannot reliably identify members and individual inquiries would be required	Court: Denied motion; on the face of the complaint, objective records and discovery may identify members; ascertainability not resolved pre-discovery
"Fail-safe" class definition	Plaintiffs contend any fail-safe concern can be cured or refined at class-certification stage	Wells Fargo contends class definition requires resolving merits (who was unpaid)—a fail-safe class that should be struck	Court: Declined to strike; noted split of authority and district practice favors addressing at certification; denial without prejudice to raise at certification stage

Marcus v. BMW of N. Am., LLC, 687 F.3d 583 (3d Cir. 2012) (Rule 23 preliminary matters include class definition and ascertainability)
Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013) (ascertainability requires objective criteria and a feasible identification method)
Byrd v. Aaron’s Inc., 784 F.3d 154 (3d Cir. 2015) (clarifies narrow ascertainability inquiry: class members must be identifiable; need not be fully identified at certification)
Hayes v. Wal-Mart Stores, Inc., 725 F.3d 349 (3d Cir. 2013) (ascertainability is two-fold: objective definition and administratively feasible mechanism)
Messner v. Northshore Univ. HealthSystem, 669 F.3d 802 (7th Cir. 2012) (discusses "fail-safe" classes and suggests refinement rather than outright denial)
Zarichny v. Complete Payment Recovery Servs., Inc., 80 F. Supp. 3d 610 (E.D. Pa. 2015) (class allegations may be stricken only when class treatment is clearly unviable from the complaint)