California SCt rejects record-keeping ascertainability requirement

Noel v. Thrifty Payless, Inc., — P.3d —-, 2019 WL
3403895, S246490 (Cal. Jul. 29, 2019)
Noel brought a putative class action on behalf of retail
purchasers of an inflatable outdoor pool sold in packaging that allegedly
misled buyers about the pool’s size, asserting the usual California claims
(UCL, FAL, CLRA). The district court found that the proposed class wasn’t
ascertainable, and the court of appeals agreed. Here, the California Supreme
Court rejects an ascertainability requirement that would require good written records,
either from the seller or the purchasers, of purchases.  The proposed class definition here was sufficiently
ascertainable, in that it defined the class “in terms of objective
characteristics and common transactional facts” that make “the ultimate
identification of class members possible when that identification becomes
necessary.”  This standard was satisfied here,
where the class definition would allow class members to self-identify.
The facts: the package image indicates that the pool can
handily accommodate several adults when inflated and filled:

A pool holding five people with plenty of room between them

Here’s the actual pool, as inflated and filled:

a pool that holds three children
Rite Aid sold over 20 thousand of these pools in California
during the class period (nearly 2500 were returned), making nearly $950,000 in
The court surveyed its own decisions, those of the
California courts, and federal courts on ascertainability to derive its
standard.  In general, the concerns for
proper definition and identification of class members are well addressed by the
usual certification standards, which consider both the costs and benefits of
the class action device, while ascertainability pulls a few considerations out into
a vacuum.  So, for example, the court of
appeals here worried that “[i]f the identities of absent class members cannot
be ascertained, … it is unfair to bind them by the judicial proceeding.” But
certification of a class requires the provision of the best practicable notice;
due process doesn’t invariably require individual notice to absent class members.
A heightened ascertainability requirement demanding the ability to provide
individual notice would be “pyrrhic,” since it conflicts with the point of
class actions for aggregating low-value claims. Nor is a heightened
ascertainability requirement “necessary to protect the due process interests of
class action defendants by protecting them from bogus claims and
disproportionate liability.… There is no suggestion that, if the plaintiff
class ultimately prevails, Rite Aid will face any onslaught of spurious claims,
much less a bevy that could not be weeded out through a competent claims
administration process. Also, because it is known how many pools were sold and
not returned, and how much in revenue Rite Aid earned from these sales, the
overall body of claims has a functional ceiling that further marginalizes any
prospect of exaggerated liability.”
Using objective facts (rather than class members’ subjective
states of mind) to define the class thus makes it ascertainable.  This puts members of the class on sufficient notice,
and supplies “a concrete basis for determining who will and will not be bound
by (or benefit from) any judgment,” making res judicata determinations possible.   The
court also pointed out that “premising ascertainability on the existence of
official records capable of being used to identify class members might, in some
situations, incentivize potential class action defendants to destroy or refuse
to maintain useful records that could provide a basis for class treatment.”
The appropriate form of notice to satisfy due process could
be worked out as part of the broader certification process/assessment of
manageability. “[G]iven the modest amount at stake (the pool having retailed
for $59.99), the odds that any class member will bring a duplicative individual
action in the future are effectively zero. Thus the true choice in this case is
not between a single class action challenging the packaging of the Ready Set
Pool and multiple individual actions pressing similar claims; it is between a
class action and no lawsuits being brought at all. Under the circumstances, due
process may not demand personal notice to individual class members, and to
build a contrary assumption into the ascertainability requirement would be a
Thus, the trial court abused its discretion when it
determined that the class proposed by plaintiff wasn’t ascertainable. The
proposed definition, “All 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,” was neither vague nor subjective.

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