On May 13, in Daniels v. Hollister Co., No. A-3629, 13T3, 2015 N.J. Super. Lexis 77 (App. Div. May 13, 2015), the New Jersey Appellate Division addressed for the first time whether a plaintiff was required to demonstrate “ascertainability” of class members to be granted class certification.

Ascertainability, as held by some federal courts discussing Rule 23 of the Federal Rules of Civil Procedure (FRCP), is embedded in FRCP 23, in addition to the four express requirements for class certification (numerosity, commonality, typicality and adequacy of representation). Ascertainability requires a court to determine whether the members of a class can be identified (“ascertained”) based on current and objective criteria. In a strong condemnation of the concept as antithetical to the purpose and history of class actions, the Appellate Division affirmed the grant of class certification, holding that while class certification presupposes the existence of a properly defined class, New Jersey does not require ascertainability as a condition for class certification in low-value consumer transactions.

Background

Plaintiff Vincent Daniels, individually and on behalf of a class, brought suit against Hollister Co., a clothing retailer, for breach of contract. In or around December 2009, Hollister conducted a promotion in which it provided a $25 gift card to customers purchasing at least $75 of merchandise in stores or online. Plaintiff claimed that Hollister voided all outstanding gift cards on Jan. 30, 2010, although the gift cards allegedly possessed “no expiration date.” Hollister acknowledged that some cards did not have an expiration date, but claimed to have had in-store signs stating the “$25 gift card expires 1/30/10″ while the promotion ran, and that it sent emails to some customers regarding the upcoming expiration date. Hollister admitted that approximately $3 million worth of $25 gift cards were voided on Jan. 30, 2010.