Adopting a standard that it says does not “unduly impair[ ] the efficacy of the class action mechanism,” the Supreme Court today holds in Noel v. Thrifty Payless, Inc. that, to have a class action certified, a plaintiff need not prove how class members will later be identified to satisfy the requirement that the class be ascertainable.
The court’s unanimous opinion by Chief Justice Tani Cantil-Sakauye concludes a class is ascertainable “when it is defined ‘in terms of objective characteristics and common transactional facts’ that make ‘the ultimate identification of class members possible when that identification becomes necessary'”; courts should not “import[ ] an additional evidentiary burden into the ascertainability requirement.” On a related point, the court states, “due process does not invariably require that personal notice be directed to all members of a class in order for a class action to proceed, or for that matter that an individual member of a certified class must receive notice to be bound by a judgment.”
The decision comes in a case alleging a photo on the package of a $60 inflatable pool misleadingly represented the actual pool size. (The opinion includes photos of the package and of the pool as inflated.) Because not only the pool but also the individual claims are small, the court says the choice presented “is between a class action and no lawsuits being brought at all.”
Acknowledging that its decisions and those of the Courts of Appeal have not been sufficiently “pellucid in explaining what [the ascertainability] requirement entails,” the court reverses the First District, Division Four, Court of Appeal. The court also disapproves a 1981 First District, Division Two, opinion, a baker’s dozen of other Court of Appeal opinions that follow it, and a 1983 decision by the Fourth District, Division One. And, in reviewing federal case law, the court praises a 2015 Seventh Circuit Court of Appeals decision and disagrees with some Third Circuit opinions.