In Leyse v. Lifetime Entertainment Services, Inc., 2017 WL 659894, at *2 (C.A.2 (N.Y.), 2017), the Court of Appeals affirmed the District Court’s denial of a ‘say-so’ class administration class.
Leyse argues that the district court abused its discretion in denying, on ascertainability grounds, his motion to certify a class composed of “all persons to whose residential telephone lines [Lifetime] or a third party acting on its behalf initiated” the challenged prerecorded message. Our precedent identifies “ascertainability” as an “implied requirement” for class certification under Fed. R. Civ. P. 23. Brecher v. Republic of Argentina, 806 F.3d at 24 (internal quotation marks omitted). “A class is ascertainable when defined by objective criteria that are administratively feasible and when identifying its members would not require a mini-hearing on the merits of each case.” Id. at 24–25 (internal quotation marks omitted).Leyse proposed to identify class members by soliciting individual affidavits certifying receipt of the prerecorded call accompanied by telephone bills showing subscription to New York City residential telephone service in August 2009. Leyse adduced no evidence that this method employed objective criteria, was administratively feasible, or permitted ready identification of members. The district court consequently concluded that, under Brecher, the proposed class was unascertainable because (1) no list of the called numbers existed, see Leyse v. Lifetime Entm’t Servs., No. 13 CIV. 5794 AKH, 2015 WL 5837897, at *5 (S.D.N.Y. Sept. 22, 2015); (2) no such list was likely to emerge, see id.; and (3) (as further explained in the order denying reconsideration) proposed class members could not “realistically be expected to recall a brief phone call received six years ago or … to retain any concrete documentation” of such receipt, App’x 172–73.1 Although a list of class members will not always be necessary to render a class ascertainable, we identify no abuse of discretion in this finding that Leyse had failed to show a sufficiently reliable method for identifying the proposed class to avoid “mini-hearing[s] on the merits of each case.” Brecher v. Republic of Argentina, 806 F.3d at 25 (internal quotation marks omitted).Birchmeier v. Caribbean Cruise Line, Inc., 302 F.R.D. 240 (N.D. Ill. 2014), upon which Leyse relies, is not to the contrary. There, plaintiff already possessed a list of telephone numbers associated with the defendant in proposing to use affidavits and phone records to document each individual call received and the telephone number of each caller. Id. at 248. No such list exists here. Moreover, Leyse proposes to supplement affidavits with records showing only subscription to residential telephone service, not the receipt of particular calls. Thus, the district court acted within its discretion in denying certification based on the inability to ascertain the class.