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.
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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