The circuit courts have split on how to apply standards of “ascertainability” — a key threshold in certifying class actions, which in turn is the key stage in litigating them. Although the Supreme Court has repeatedly been invited to weigh in on the question, thanks in part to the efforts of NYU lawprof Sam Issacharoff, it has decided each time to pass on the issue. But a case against food producer ConAgra over the labeling of Wesson cooking oil as “all natural” may present the issue squarely enough to tempt the Justices to grant certiorari. In that case, Neil Gorsuch could get his first chance to tip his hand as to whether he will emerge as a successor to Scalia in applying skeptical limits to the class action device. [Alison Frankel, Reuters]
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