July 01, 2020 Top Story

Appeals Court Re-inflates Kiddie Pool Class Action

Plaintiff-friendly approach to ascertainability lowers bar for certification

By Stephen Carr

Consumer class action claims are often numerous, but low-value. Sales records may not contain much information about the actual consumer. Therefore, it can be challenging for plaintiffs to meet the “ascertainability” requirement for class action certification. Courts have split over whether this requirement means that plaintiffs simply need an objective definition to determine whether plaintiffs are in or out of the class, or whether plaintiffs must present a plan for identifying and contacting all, or most, of the class members.

An inflatable pool, advertised as being able to comfortably fit several adults, could only hold a few small children

An inflatable pool, advertised as being able to comfortably fit several adults, could only hold a few small children

Credit: monkeybusinessimages | iStockphoto by Getty Images

A recent decision embraces a more liberal approach to the question and could provide new opportunities to pursue consumer class actions. ABA Section of Litigation leaders believe the decision will open the door to more consumer class actions.

Inflatable Pool Deflates Consumers

Noel v. Thrifty Payless, Inc. began with a claim under California unfair competition law, false advertising law, and the Consumers Legal Remedies Act. The named plaintiff alleged that thye drugstore chain Rite Aid misled consumers in advertising an inflatable children’s pool. The photograph on the front of the pool’s box showed several adults swimming comfortably in the pool, but when inflated, the actual product could hold only a few small children.

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