Daily Blast - July 31, 2019 - Lewis Brisbois Bisgaard & Smith LLP

On Monday, July 29, 2019, the California Supreme Court published its opinion in Noel v. Thrifty Payless, Inc., S246490, concluding that the trial court abused its discretion in denying class certification by demanding that plaintiff offer evidence showing how class members might be individually identified to satisfy the ascertainability requirement for class certification. The Supreme Court found that the ascertainability requirement in certifying a class did not incorporate this additional evidentiary burden and reversed the judgment below.

Noel involved a claim by consumer James Noel under the unfair competition law (Bus. & Prof. Code, § 17200), false advertising (Bus. & Prof. Code, §§ 17500 et sq.) and Consumer Legal Remedies Act (Civ. Code, §§ 1750 et seq.) arising from his purchase of an inflatable pool from a Rite Aid drug store. Noel alleged that the pool he purchased was considerably smaller than advertised on the packaging. Noel moved to certify a class of over 20,000 individuals who had purchase the inflatable pool from Rite Aid, and defined the class as “[a]ll persons who purchased the Ready Set Pool at a Rite Aid store located in California within the four years preceding the date of the filing of this action.” Rite Aid argued that Noel failed to demonstrate the existence of an ascertainable class since he failed to introduce evidence showing how members of the putative class could be identified later in the proceeding so they could be notified of the pending action. The trial court found that absent evidence as to what method will be utilized to identify the class members, what records are available, how they will be obtained and what those records will show, there was insufficient evidence to certify a class. The Court of Appeal agreed and affirmed the trial court’s ruling.

However, the Supreme Court reversed the appellate court’s decision, and found that the ascertainability requirement was satisfied since the class definition provided a basis for class members to self-identify. In so ruling, the court rejected the argument that relevant due process interests can be satisfied only when “official records” of a business supply the means of identifying class members. (Slip Op. at p. 38.) The court set forth a bright-line rule that “a representative plaintiff in a class action need not introduce evidence establishing how notice of the action will be communicated to individual class members in order to show an ascertainable class.” (Id. at p. 38.) In reaching its decision, the court declined to follow the approach relied on by other appellate courts requiring that class members be identified “without unreasonable expense or time.” (Id. at p. 40.) Instead, the court concluded that defining an ascertainable class in objective terms that make the eventual identification of class members possible promotes due process. The court acknowledged the Court of Appeal’s concerns as to the state of the record, and that plaintiff had not provided evidence of all of the facts and circumstances relevant to a determination regarding the appropriate form of notice to the class. However, found that plaintiff’s failure to offer evidence associated with the identification of class members does not justify a failure to find an ascertainable class.