Defining the precise class to which Argentina owes damages for its refusal to meet its bond payment obligations and calculating those damages have proven to be exasperating tasks. In this, the fourth time this Court has addressed the methods by which damages must be calculated and the manner in which the class is defined in this case and several similar matters, see Seijas v. Republic of Argentina (Seijas I),
By now, the factual background of these cases is all too familiar. After Argentina defaulted on between $80 and $100 billion of sovereign debt in 2001, see Seijas I,
The Republic’s liability has not been seriously contested in this litigation. See Brecher v. Republic of Argentina, No. 06 Civ. 15297(TPG),
DISCUSSION
We review a district court’s class certification rulings for abuse of discretion, but we review de novo its conclusions of law informing that decision. In re Pub. Offerings Secs. Litig.,
Like our sister Circuits, we have recognized an “implied requirement of as-certainability” in Rule 23 of the Federal Rules of Civil Procedure. In re Pub. Offerings Secs. Litig.,
On appeal, Appellee argues that a class defined by “reference to objective criteria ... is all that is required” to satisfy ascertainability. Appellee Br. 19. We are not persuaded. While objective criteria may be necessary to define an ascertainable class, it cannot be the case that any objective criterion will do.
This case presents just such a circumstance where an objective standard&emdash;own-ing a beneficial interest in a bond series without reference to time owned
Appellee argues that the class here is comparable to those cases involving gift cards, which are' fully transferable instruments. However, gift cards are qualitatively different: For example, they exist in a physical form and possess a unique serial number. By contrast, an individual holding a beneficial ■ interest in Argentina’s bond series possesses a right to the benefit
A hypothetical illustrates this problem. Two bondholders — A and B — each hold beneficial interests in $50,000 of bonds. A opts out of the class, while B remains in the class. Following a grant of summary judgment on liability, both A and B then sell their interests on the secondary market to a third party, C. C now holds a beneficial interest in $100,000 of bonds, half inside the class and half outside the class. If C then sells a beneficial interest in $25,000 of bonds to a fourth party, D, the absence of a temporal limitation like the continuous holder requirement ensures that neither the purchaser nor the court can ascertain whether D’s beneficial interest falls inside or outside of the class.
The lack of a defined class period, taken in light of the unique features of the bonds in this case, thus makes the modified class insufficiently definite as a matter of law. The expansion of the class after a judgment on liability further raises the specter of one-way intervention that motivated the 1966 amendments to Rule 23. See Am. Pipe & Constr. Co. v. Utah,
There remains the question of determining damages on remand. Given that Ap-pellee here is identically situated to the Seijas plaintiffs and this Court has already addressed the requirements for determining damages in those cases, we conclude that the District Court should apply the same process dictated by Seijas II for calculating the appropriate damages:
Specifically, it shall: (1) consider evidence with respect to the volume ofbonds purchased in the secondary market after the start of the class periods that were not tendered in the debt exchange offers or are currently held by opt-out parties or litigants in other proceedings; (2) make findings as to a reasonably accurate, non-speculative estimate of that volume based on the evidence provided by the parties; (3) account for such volume in any subsequent damage calculation such that an aggregate damage award would “roughly reflect” the loss to each class, see Seijas I, 606 F.3d at 58-59 ; and (4) if no reasonably accurate, non-speculative estimate can be made, then determine how to proceed with awarding damages on an individual basis. Ultimately, if an aggregate approach cannot produce a reasonable approximation of the actual loss, the district court must adopt an individualized approach.
CONCLUSION
Because we conclude the District Court’s order violated the requirement of ascertainability contained in Rule 23, it is not necessary for us to reach the remaining issues raised by Appellant. Therefore, for the reasons stated above, the order of the District Court is VACATED, and the case is REMANDED for an evidentiary hearing on damages.
Notes
. Even Appellee's principal sources for this standard use the requirement in context to observe that subjective criteria are inappropriate and, thus, any criteria used in defining a class need to be "objective.” Appellee Br. 20 (citing Fears v. Wilhelmina Model Agency, Inc., No. 02 Civ. 4911 HB,
. Of course, "identifiable” does not mean "identified”; ascertainability does not require a complete list of class members at the certification stage. See 1 McLaughlin on Class Actions § 4:2 (11th ed.2014) (“The class need not be so finely described, however, that every potential member can be specifically identified at the commencement of the action; it is sufficient that the general parameters of membership are determinable at the outset.").
.See, e.g., id. § 4:2 ("[T]he failure to propose an appropriate time limitation in defining the class period usually will result in a finding that the class is impermissibly overbroad and not ascertainable.”). The result of this omission here is that the identity of class members will remain fluid even following entry of judgment, since nothing in the new class definition freezes the class composition at any designated time.
. This hypothetical was posed by the panel at oral argument; significantly, counsel for Ap-pellee was unable to offer a method by which the District Court would in this case be able to make this determination.