In a groundbreaking ruling, The California Supreme Court decided that the state's judges could certify class actions without requiring plaintiffs lawyers to outline how they would identify every member of the class.

Monday's ruling, in a case involving an inflatable pool sold at Rite Aid, sets forth a more liberal definition in California of so-called ascertainability of class members—that is, to what extent plaintiffs attorneys must identify specific class members. The subject has received increased attention in the class action bar as more lawyers file cases over cheap goods for which consumers have no receipts or other records of their purchases.

The court found in Noel v. Thrifty Payless that requiring identification of all class members prior to certification “threatens to demand too much, too soon.”

“We conclude that the trial court erred in demanding that plaintiff offer such evidence to satisfy the ascertainability requirement,” wrote Chief Justice Tani Gorre Cantil-Sakauye.

Leslie Brueckner, senior attorney at Public Justice, who argued the case for plaintiff Diana Nieves Noel, said the ruling ends a string of appellate court decisions in California that created a “class action killer” because they required official records to identify class members.

“The critical importance of today's decision is that it effectively puts an end to a terrible strain of ascertainability decisions,” said Brueckner. “It's a really big deal because this rogue ascertainability string that had infected the California courts has been stamped out once and for all and the California Supreme Court, in this 45-page unanimous decision, said those cases were improperly decided.”

San Francisco's Klein, Hockel, Iezza & Patel represented Thrifty Payless Inc., which operated the Rite Aid store. Partner Mark Iezza and Michael Early, of counsel, did not respond to a request for comment.

In the case, James Noel's widow claimed that a $59.99 backyard pool he purchased in 2013 from a Rite Aid store in San Rafael turned out to be much smaller than the picture on the package. He brought a class action on behalf of the 20,000 other California customers who purchased the same product, an 8-foot by 25-inch Kids Stuff Ready Set Pool, during the past four years.

Marin County Superior Court Judge Paul Haakenson rejected class certification because there were no official records that would identify the members of the class, many of whom paid cash for the pool. In 2017, the First District Court of Appeal agreed, concluding that Noel submitted “nothing offering a glimmer of insight into who purchased the pools or how one might find that out,” and that created a “serious due process question.”

Numerous consumer groups had filed amicus briefs supporting Public Justice, including the Impact Fund, the National Association of Consumer Advocates, the National Consumer Law Center, the Consumer Attorneys of California and Public Citizen. The Washington Legal Foundation and the California Retailers Association filed an amicus brief for Rite Aid.

In Monday's ruling, the California Supreme Court reviewed its own case law and that of the courts of appeal to determine what is required under California's Code of Civil Procedure.

The issue also has created a circuit split in the federal courts, under the Federal Rule 23 of Civil Procedure. The California Supreme Court cited a U.S. Court of Appeals for the Seventh Circuit decision in Mullins v. Direct Digital LLC, which it said “offers a thorough, and in our view illuminating, assessment of how ascertainability should be understood in connection with class certification.” The Ninth, Sixth and Eighth circuits have joined in rejecting a higher hurdle for ascertainability.

The court denied a string of 2013 rulings from the U.S. Court of Appeals for the Third Circuit that required plaintiffs to provide a “reliable and administratively feasible” method to identify class members.

“What's important about the California Supreme Court decision is not only does this resolve the issue for California, but the court's decision will be influential for the federal courts that decide this question going forward,” Brueckner said.