Alas, Justice for the Tiny Pool Victims!

Noel v. Thrifty Payless, Inc., No. S246490 (Cal. Jul. 29, 2019)

This is a pretty silly class action about whether the picture on the box of a pool sold at Rite-Aid is deceptive because it looked bigger than the actual pool, even though the actual dimensions were printed on the box. Plaintiff—who had taken almost no discovery—moved for class cert. The trial court denied it. It found the class wasn’t ascertainable because Plaintiff didn’t explain or show with evidence how the members of the class—20,000 people who bought the pool—could be identified and provided with notice. The Court of Appeal affirmed.

But the Supreme Court granted review. And in a unanimous opinion by the Chief, it reverses. The Court holds that all that ascertainability requires is an unambiguous and objective class definition. Like “everyone who bought this crappy pool at Rite-Aid since 2010” or whatever. The definition can’t vague or ambiguous. And it can’t be a so-called “fail-safe” definition—one where liability is baked into the definition. And it can’t be subjective—like “everyone who was deceived.” But, after extensively exploring a split authority on the issue, the Court holds that the fact that Plaintiff can’t prove she has a way to locate and give notice to the class members does not make the class unascertainable. It disapproves a whole bunch of cases in so doing. (Check footnote 15.)

The Court goes on to note that notice issues could preclude certification on other grounds, like superiority or manageability. But even under those considerations, the failure to have an evidence-based plan for individualized mail notice at the time the motion is filed doesn’t necessarily doom class cert. Indeed, due process doesn’t always require individual notice. Especially in low value claims where class members don’t have much at stake. It’s basically class action or no action at all. How much is really lost if the class members who didn’t get personal notice are subject to res judicata regarding their individual claims for the delta between the value of the Rite-Aid pool they think they are buying and the one that’s actually in the box? As goes the Judge Posner quip quoted in the opinion, “only a lunatic or fanatic sues for $30.”

Reversed.