August 27, 2019 Practice Points

California Supreme Court Adopts Relaxed Approach to Ascertainability Requirement in False Advertising Case

The plaintiff alleged that an inflatable pool's packaging suggested the pool was able to hold four adults comfortably, when in reality, the pool had difficulty accommodating four children.

By Adam Polk

On July 29, 2019, the California Supreme Court issued its decision in Noel v. Thrifty Payless, Inc.—a false advertising case in which the trial court denied class certification, finding that the representative plaintiff had not satisfied his burden of demonstrating that class members were ascertainable. The court reversed the lower court’s finding, rejecting a strict ascertainability requirement, and instead finding that plaintiffs in proposed class actions need only define the class objectively, such that identification of class members is possible when necessary.

Noel is a false advertising case arising out of the purchase of an inflatable pool. The plaintiff—one of approximately 20,000 purchasers of the pool—alleged that Thrifty Payless advertised the pool as able to hold four adults comfortably through a photo on the box, when in reality, the pool had difficulty accommodating four children. The plaintiff did not introduce evidence that he would be able to provide notice to all affected class members in connection with his class certification motion. The trial court accordingly denied class certification on ascertainability grounds, holding that presenting such evidence is necessary to a finding of ascertainability.

The court of appeal affirmed, finding that class counsel had filed the class certification prematurely, without first developing evidence to show a means of identifying absent class members. The court of appeal grounded its finding on the fact that ascertainability is a due process safeguard that exists to ensure that absent class members are notified of their claims before releasing them.

The California Supreme Court reversed. In a lengthy opinion, marshalling both California’s treatment of the ascertainability requirement, and the treatment ascertainability has received in the federal courts, the court held that ascertainability is satisfied where a class is defined objectively, in terms that make “the eventual identification of class members possible.” Relying heavily on the Seventh Circuit’s decision in Mullins v. Direct Digital, LLC, 795 F.3d 654 (7th Cir. 2015), the court found that a relaxed approach to ascertainability that focuses on an objectively defined class “protects the due process interest of all parties and absent class members without unduly impairing the efficacy of the class action mechanism.” Specifically, the court reasoned that class actions where consumers are more difficult to identify often center on lower value consumer claims, where without class treatment, there would likely be no recovery at all.

The court found that defining the class objectively preserves the availability of such lower value consumer class actions while also balancing the due process rights of absent class members, as an objectively defined class supplies “a concrete basis for determining who will and will not be bound (or benefit from) any judgment.” The court found that imposing a difficult-to-satisfy evidentiary burden associated with ascertainability makes little sense in cases where “advancing the social good” is involved, and that such a burden may mean no recovery at all. Rejecting the notion that its ascertainability holding would prevent adequate notice to class members, the court stressed that notice must be “the best practicable, reasonably calculated, under all the circumstances to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections”—not perfect. Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812 (1985).

The court therefore found the trial court abused its discretion in finding no ascertainable class existed. It found the definition “[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” to be objective because “a member of the class could appreciate from this definition whether he or she is included within it, and thus be in a position to take appropriate steps to protect his or her interests.” Post-Noel, in California, that is all that is required.

Adam Polk is a partner at Girard Sharp LLP in San Francisco, California.


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