Monday, April 6, 2015

To Define Is Not to Find

Aguirre v. Amscan Holdings, Inc., No. C073059 (D3 Mar. 6, 2015)

Those who follow California consumer law know that it’s a no-no under the Song-Beverly Credit Card Act for a retailer to unjustifiably ask for a customer’s zip code as a condition of accepting a credit card payment. See Pineda v. Williams-Sonoma Stores, Inc., 51 Cal. 4th 524 (2011). But when a class action claim is brought for that violation, how do you figure out who is in the class?

The trial court in this case denied class certification on that very basis. The putative class included all customers of a party supply store over a three year window. But the defendant did not keep identifying name or address information from its customers, it just asked for their zip codes. Because that made it rather difficult to locate and identify the members of the class, the trial court determined that the class was not readily ascertainable and denied cert. 

But the court of appeal says that was wrong. According to the court, ascertainably is about class definition, not the ability to locate class members.  The point is define the class with sufficient precision so that potential class members can know if they are in or out. The absence of records in a defendant’s possession that enabling the identification of the class members does not mean that a class is not ascertainable. Those types of issues can be worked out in connection with giving notice to the potential class, which can be done in all sorts of creative ways.


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