On June 6, 2025, the Third Circuit Court of Appeals issued a non-precedential opinion affirming a denial of class certification based on a plaintiff’s failure to satisfy the ascertainability requirement imposed by FRCP 23(b)(3). In McMahon v. Chipotle Mexican Grill, Inc., 2025 U.S. App. LEXIS 13900 (3d. Cir. June 6, 2025), the Third Circuit emphasized a putative class cannot be certified under the federal rules without a reliable method for identifying class members. Two named plaintiffs in McMahon were “shortchanged” after paying cash for an order at Pennsylvania Chipotle restaurants that were unable to provide them with change in coins. This putative class action was filed against Chipotle shortly thereafter and sought to certify a class defined as: “all individuals who, on or after January 1, 2020, purchased any item(s) from a Chipotle . . . restaurant in Pennsylvania using cash, and were given change of less than the difference between the amount of cash tendered and the purchase price of the item(s).”
The plaintiffs in McMahon proposed a two-fold process to identify the Chipotle patrons who fell within the scope of this class definition. The first step in that process involved identifying the cash transactions through Chipotle’s transactional data, which consisted of data fields such as the amount of sale, type of tender, date, time, restaurant location, receipt number, and cashier identity. However, none of Chipotle’s internal data fields could show whether a customer received the correct change. The plaintiffs’ proposed solution to this data gap was a second identification step that involved cross-referencing the transactional data with one or more other records, including: customer receipts, customer complaint documentation, Chipotle Rewards membership information, restaurant surveillance footage, and customer affidavits.
The Third Circuit affirmed the federal district court’s finding that this method was unreliable because none of the records that would be used as a cross-reference against Chipotle’s transactional data could definitively determine which customers were actually shortchanged. In holding the district court did not abuse its discretion in declining to certify the class, the Third Circuit pointed out the practical shortcomings of the proposed cross-walk method. For example, merely identifying cash paying customers through video surveillance and Chipotle Rewards membership information could not show that a particular customer was necessarily shortchanged. The district court and Third Circuit also took issue with the plaintiffs’ affidavit approach given the record demonstrating that those affidavits could not be corroborated through objective sources and instead required an “individualized fact-finding that defeats ascertainability.”
In closing, the Third Circuit made clear it was not the sheer volume of individual records needed to be reviewed that won the day for Chipotle; rather, it was the fact that the records available simply did not contain the information needed to identify the proposed class members. Individualized fact-finding would be required to identify would-be shortchanged plaintiffs and that individualized inquiry ultimately defeated ascertainability in McMahon.
Originally filed in Pennsylvania state court, the operative complaint in McMahon sought to impose class liability against Chipotle for claims of misappropriation, conversion, breach of contract, unjust enrichment, and violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law. McMahon is a recent reminder that production of a robust collection of transactional data fields itself is far from a guarantee that a class plaintiff can show a reliable method to identify class members, and that all data has its limits – especially in class action litigation.
Client Alert 2025-164
