California Supreme Court Sets New Class Ascertainability Standard

Ascertainability is a well-established prerequisite for class certification under section 382 of the Code of Civil Procedure. Historically, questions of ascertainability are left to trial courts to decide on a case-by-case basis, which has left room for differences among California courts. However, on July 29, 2019, in Noel v Thrifty Payless, Inc, the California Supreme Court clarified what California’s ascertainability requirement for class certification involves. 

Chief Justice Cantil-Sakauye's opinion concludes, “Plaintiff’s proposed class definition articulates an ascertainable class. It defines 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.’ Moreover, this standard was satisfied here because the class definition provided a basis for class members to self-identify.”

Defendant Sought to Defeat Class Certification Based on Ascertainability

James Noel bought an inflatable pool that was allegedly smaller than advertised on the product packaging. He sought to certify a class comprised of any California resident who bought the same pool within four years prior to his 2014 filing. The defendant argued that Noel hadn’t shown how he could identify the members of the proposed class so they could be provided with notice of the pending action, as the receipts were likely discarded long ago. 

The trial court agreed that “his failure to come up with any means of identifying [the 20,000+ individuals who bought pools] was a legitimate basis for denying class certification.” The decision was later upheld following the first appeal.

Defendant’s Records Are Not the Only Method of Establishing Ascertainability

The Justices said their approach “protects the due process interests of all parties and absent class members, without unduly impairing the efficacy of the class action mechanism.” 

The Supreme Court noted that requiring the existence of defendants’ records to establish ascertainability could incentivize class action defendants to destroy or neglect to maintain useful records that could provide a basis for class treatment.

The California Supreme Court’s opinion contrasts with some Federal Court opinions

The California Supreme Court’s decision contrasts with the Third Circuit’s opinion in Carrera vs. Bayer Corp. In that case, a consumer purchased an over-the-counter weight-loss drug and allegedly did not lose weight. He sought small dollar compensation from pharmaceutical giant Bayer and sought class certification on behalf of all Florida residents who had purchased the drug. Bayer argued that it was too difficult to determine who was a member of the class and who was not. Bayer failed to keep records – instead selling to intermediary retailers, which also did not keep records. Individual purchasers may have received receipts, but many of them were lost and had no record of the individual buyers’ names. The Court of Appeals for the Third Circuit sided with Bayer and decertified the class, stating the class failed to satisfy the ascertainability requirement and relied too heavily on the “subjective say-so” of potential class members. 

For more on class action data ascertainability and how to pass class certification, contact the Kroll Settlement Administration team.