The Tenth Circuit recently affirmed an order denying class certification, in an unpublished decision holding that district courts may rely on out-of-circuit precedent in deciding whether a proposed class is ascertainable.

In Evans v. Brigham Young University, No. 22-4050, 2023 WL 3262012 (10th Cir. May 5, 2023), the plaintiff alleged that he had paid tuition to attend in-person classes and that BYU was unjustly enriched when it switched to online-only education in March 2020 as a result of the COVID-19 pandemic. The plaintiff sought to represent a class of “All persons who paid tuition and/or the Mandatory Fees to attend in-person class(es) during the Winter 2020 term/semester affected by COVID-19 at BYU and had their class(es) moved to online only learning.” The district court held that the proposed class definition was not ascertainable under the standards adopted by the Third and Seventh Circuits for two reasons. First, the court held that it would need to identify all of the third-party sources that paid tuition on behalf of students, and that BYU lacked records showing the sources of payment. Second, the court held that it would need to inquire into the subjective state of mind for each student to determine whether they “paid tuition for the purpose of attending in-person classes, pandemic or not.”

The Tenth Circuit affirmed, noting that under Tenth Circuit law, ascertainability is treated “as a sub-requirement of numerosity.” The court explained that it has not explicitly adopted the ascertainability tests used by the Third and Seventh Circuits, but that district courts are allowed to consider those standards “as part of their discretion” in deciding class certification. But the court once again declined to adopt either approach as binding in the Tenth Circuit. Parties opposing class certification in the Tenth Circuit should keep their eye on ascertainability as a potential method for defeating certification. In the appropriate case, parties may consider arguing explicitly in favor of the more-stringent Third Circuit standard (to the extent that court has not softened its view).