We previously wrote about the split among the circuit courts of appeal over the ascertainability requirement for class certification and whether self-identifying consumer affidavits—e.g., an affidavit in which a consumer attests that he or she is a class member and suffered injury—can satisfy that requirement.
Recently, the First Circuit denied, over a strong dissent, a Rule 23(f) petition to appeal a district court’s order certifying a class on the grounds that the plaintiffs could demonstrate ascertainability through consumer affidavits. Carter v. The Dial Corporation, No. 17-8009, 2017 WL 3225164 (1st Cir. July 31, 2017). In Carter, the district court certified a class of consumers from eight states who purchased antibacterial soap from 2001 to the present. The defendants lacked any records to identify class members, and class members were unlikely to possess records demonstrating that they purchased the product. Nevertheless, the district court, relying on the First Circuit’s recent decision In re Nexium Antitrust Litig., 777 F.3d 9 (1st Cir. 2015), held that the plaintiffs satisfied ascertainability because class members could submit affidavits or declarations to establish that they purchased the product during the 16-year class period.
Judge Kayatta, who also dissented in Nexium, dissented from the denial of the Rule 23(f) petition. Kayatta stated that the Nexium majority held that plaintiffs could establish classwide injury through affidavits from each class member stating that he or she was not a brand loyalist, i.e., would not have purchased a cheaper generic version of the drug if available—an approach suggested by neither party. 2017 WL 3225164 at *1 (citing Nexium, 777 F.3d at 20). Kayatta observed there was no record in either Nexium or Carter to evaluate whether the defendant would have had a meaningful opportunity to refute the proposed affidavits. Kayatta noted that “[s]ooner or later, this court will have to wrestle with the issues raised by the district court’s approach” on a full record and briefing. 2017 WL 3225164, at *1.
In April, we reported on the oral argument in Microsoft Corp. v. Baker, a Supreme Court case addressing whether putative class members may obtain appellate review of orders denying class certification by voluntarily dismissing their individual claims with prejudice. Recently, the Supreme Court gave its unanimous answer: no. See Microsoft Corp. v. Baker, 137 S. Ct. 1702, 1707 (2017). The Court’s ruling ends a long-standing practice that class plaintiffs used as an end run around procedural restraints to create appellate review, and affirms the use of a Federal Rule of Civil Procedure 23 (Rule 23) petition as the sole vehicle to obtain interlocutory review of an order denying (or granting) class certification.
The Eight Circuit provided some useful guidance for district courts and practitioners in obtaining and reviewing final approval of class settlements in its July 5, 2017, decision in 
On May 9, the Fifth Circuit Court of Appeals issued a decision in Slade v. Progressive Sec. Ins. Co, Case No. 15-300010, 2017 WL 1843737 (5th Cir. May 9, 2017), in which the court discussed how the practice of claim splitting can create an adequacy bar to class certification.