Cite as 2015 Ark. 73
process of having the issue of Philip Morris’s misrepresentation under ADTPA litigated in one setting.[1]
V. Ascertainability
Philip Morris's last argument is that the class is not ascertainable. It further argues that the court made no ruling regarding ascertainability and that we should reverse on those grounds alone. This argument is misplaced. Rule 23 does not require the circuit court to make an explicit ruling on whether the class is ascertainable.[2] Instead, we have said the following regarding this issue:
It is axiomatic that in order for a class action to be certified, a class must exist. The definition of the class to be certified must first meet a standard that is not explicit in the text of Rule 23, that the class be susceptible to precise definition. This is to ensure that the class is neither "amorphous," nor "imprecise." Concurrently, the class representatives must be members of that class. Thus, before a class can be certified under Rule 23, the class description must be sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member of the proposed class. Furthermore, for a class to be sufficiently defined, the identity of the class members must be ascertainable by reference to objective criteria.
Ferguson v. Kroger Co., 343 Ark. 627, 631, 37 S.W.3d 590, 593 (2001). In the present case, the circuit court met this requirement by defining the class as follows: All persons who purchased Lights cigarettes in Arkansas for personal consumption from November 1, 1971 through June 22, 2010. This class is definite and "ascertainable by reference to objective
- ↑ In so holding, we reject Philip Morris's separate argument that bifurcation would not create any efficiencies.
- ↑ In the case Philip Morris cites to support this proposition, we reversed because the circuit court made no findings regarding commonality, predominance, and superiority. Lenders Title Co. v. Chandler, 353 Ark. 339, 107 S.W.3d 157 (2003). However, we never held that the circuit court, in addition to defining the class, had to make a separate finding of ascertainability.
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