A California Court of Appeal recently held that a class is not unascertainable simply because individual class members cannot be identified from a defendant’s records so long as there is some objective means for identifying class members.
In Aguirre v. Amscan Holdings, Inc., plaintiff alleged that defendant Party America violated the Song-Beverly Credit Card Act by requesting and recording credit cardholders’ zip codes in conjunction with credit card purchase transactions.
Party America moved for an order striking and dismissing the class allegations from the complaint and denying class certification. It argued the class was not ascertainable because there were no means for identifying potential class members to notify them of the pending action because it did not have documents or a database identifying their names or addresses and argued it is plaintiff’s burden to establish ascertainability.
Plaintiff disputed her requirement to establish a means to identify potential class members, because any individual could look at the class definition, know whether or not they are a part of the class, and confirm membership through objective evidence (i.e., a receipt or credit card statement showing a purchase on a particular date in a particular amount). This receipt or credit card statement could then be cross-referenced with Party America records that included customers’ zip codes with the corresponding purchase amount.
The trial court accepted Party America’s argument, denying class certification based on plaintiff’s “inability to clearly identify, locate, and notify class members through a reasonable expenditure of time and money.”
But, the Court of Appeal rejected the trial court’s ruling, finding that it applied an erroneous legal standard in determining that the proposed class was not ascertainable and setting forth the following “correct” legal standards it claims should be applied:
- “A class is ascertainable if it identifies a group of unnamed plaintiffs by describing a set of common characteristics sufficient to allow a member of that group to identify himself or herself as having a right to recover based on that description.”
- “Ascertainability is achieved by defining the class in terms of objective characteristics and common transactional facts making the ultimate identification of class members possible when that identification becomes necessary.”
- “Whether a class is ascertainable is determined by examining (1) the class definition, (2) the size of the class, and (3) the means available for identifying class members at the remedial stage.”
Applying these standards, the Court clarified that the representative plaintiff does not need to identify individual class members, much less locate them, to establish the existence of an ascertainable class.
The absence of identifying records from defendants does not preclude the finding of an ascertainable class. Where the class “describes a set of common characteristics sufficient to allow a member of that group to identify himself or herself as having a right to recover based on the description, and [the] plaintiff has proposed an objective method for identifying class members when that identification becomes necessary, there exists an ascertainable class.”
The Court was persuaded that potential class members had the ability to present a receipt or credit card statement showing a credit card transaction on a specific date, at a specific store location, and the specific amount of the purchase which could then be cross-referenced with Party America’s records.
The Court rejected the Third Circuit’s decision in Carrera v. Bayer Corp. which found lack of ascertainability because consumers were unlikely to retain receipts for the products at issue. Reflecting the split in authority in the Ninth Circuit, the Court noted that Carrera has been roundly criticized by the district courts in the Ninth Circuit. Nonetheless, the Court distinguished Carrera, finding that customers in this case have a record of the transaction (a receipt or credit card statement) which can be cross-referenced with Party America’s records to determine if the customer’s zip code was recorded.
This case represents another blow to the ability of California class action defendants to avoid certification simply by arguing that they do not have records sufficient to identify class members. Not all hope is lost, as the court left intact prior case law holding that where there is no objective evidence indicating class membership, a class is not ascertainable. For now, what this court deems sufficient to establish an ascertainable class is objective evidence that can be cross-referenced with a defendant’s records to verify membership.