Noel v. Thrifty

Noel v. Thrifty

Public Justice is co-lead counsel in a California Supreme Court case that presents an important issue of class certification: whether a plaintiff must demonstrate that absent class members can be identified, or “ascertained,” at the class certification stage. Our position is that, at most, Rule 23 and the analogous California rule regulating class actions require that the definition of the class be objective, not necessarily that each class member can be identified and located, before a case can proceed.

The plaintiff in this case—an ordained Presbyterian minister named James A. Noel—purchased an inflatable pool for his grandchildren based on the photographs shown on the packaging. After he discovered that the pool was half the depicted size, Mr. Noel brought suit under the California Consumer Legal Remedies Act, Unfair Competition Law, and False Advertising Law on behalf of himself and all other California purchasers to obtain restitution of the purchase price.

Noel then moved for class certification, which should have been—and was, for the most part—a straightforward matter: the defendant, Thrifty Payless, Inc. (dba Rite Aid), had sold more than 20,000 inflatable pools in California during the class period, always using the same packaging; Noel was a purchaser like any other, and testified credibly to his purchase and deception by the pools’ packaging; and the trial court found that most requirements for class certification under California law were satisfied.  However, the trial court determined that the proposed class was not certifiable, because Noel had failed to show that individual class members could be identified using Rite Aid’s records, or any other source.

The Court of Appeals affirmed on the same ground.  Noel sought review by the California Supreme Court, arguing that the Court of Appeals’ decision conflicted with other California appellate court decisions requiring only that classes be defined with objective criteria at the certification stage.  He further argued that, if applied by other courts, the Court of Appeals’ standard would “eviscerate class actions in this state.” The California Supreme Court granted review, and Public Justice joined the case as co-lead counsel.

Class member ascertainability is one of the hottest topics in the world of class action law.  The Third Circuit’s decision in Carrera v. Bayer Corp. rocked the class-action bar, because it threatened to undermine the use of Rule 23 to vindicate small damages claims—precisely the sorts of claims that wouldn’t be brought at all absent the class-action device.  Since Carrera was decided, the federal Courts of Appeals have split on the issue of ascertainability and, although the majority of courts have rejected the Third Circuit’s approach, the Supreme Court could take up the issue and wipe all the good law away in one fell swoop.

In July 2019, the California Supreme Court ruled unanimously that class certification does not require any showing that all class members can be identified by official records. The Court wrote, “[W]e conclude that the functions properly assigned to the ascertainability requirement are best served by regarding a class as 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.’ […] This standard was satisfied here because the class definition provided a basis for class members to self-identify.”

The Court also pointedly rejected Rite Aid’s argument that ascertainability must require identifiability in order to satisfy due process concerns regarding notice, explaining that due process does not require individual notice to all class members; instead, it merely requires “the best notice practicable”—a standard that allows for publication notice in appropriate circumstances.

Although the California class-action rules are not identical to Federal Rule 23, the California Supreme Court ruling on this issue could have persuasive force nationwide.  And, of course, given that California has the sixth largest economy in the world, this successful preservation of small-damage consumer class actions in the state is important in its own right.

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