Retail purchasers of an inflatable outdoor pool brought putative class action based on misleading information regarding the size of the pool in its packaging.  The trial court denied certification on the basis that the named plaintiff had not supplied evidence showing how class members might be individually identified. The California Supreme Court reversed.

The ascertainability requirement ensures that the class is defined “in terms of objective characteristics and common transactional facts that make the ultimate identification of class members possible when that identification becomes necessary.”

We regard this standard as including class definitions that are “sufficient to allow a member of the class to identify himself or herself as having a right to recover based on the class description.”

Due Process, the Court explains, “does not invariably require that personal notice be directed to all members of a class in order for a class action to proceed, or for that matter that an individual member of a certified class must receive notice to be bound by a judgment. It follows that a construction of the ascertainability requirement that presumes such notice is necessary to satisfy due process, and demands that the plaintiff show how it can be accomplished, threatens to demand too much, too soon. It is likewise mistaken to take a categorical view that the relevant due process interests can be satisfied only when ‘official records’ supply the means of identifying class members, and for a similar reason: due process is not that inflexible.”

Therefore: “As a rule, a representative plaintiff in a class action need not introduce evidence establishing how notice of the action will be communicated to individual class members in order to show an ascertainable class.”

The Court goes on to explain:

“The record before us does not establish all of the facts and circumstances relevant to a determination regarding the appropriate form or forms of notice to the class. Yet the record casts substantial doubt on the proposition that due process can be satisfied only through the provision of individual notice to the approximately 20,000 members of the putative class. For one thing, these purchasers may not be reasonably identifiable. Meanwhile, given the modest amount at stake (the pool having retailed for $59.99), the odds that any class member will bring a duplicative individual action in the future are effectively zero. Thus the true choice in this case is not between a single class action challenging the packaging of the Ready Set Pool and multiple individual actions pressing similar claims; it is between a class action and no lawsuits being brought at all. Under the circumstances, due process may not demand personal notice to individual class members, and to build a contrary assumption into the ascertainability requirement would be a mistake.

“Reading into the ascertainability element an additional requirement that the identification of class members must occur ‘without unreasonable expense or time’ runs a similar risk of preempting a more careful analysis later. Our jurisprudence addressing class certification has stressed the importance of a careful weighing of both the benefits and the burdens that may be associated with a proposed class action. A conception of ascertainability as concerned with whether class members can be identified without an unreasonable commitment of expense or time is at cross purposes with this direction. As the court in Mullins v. Direct Digital, 795 F.3d 654, 663-664 (7th Cir. 2015) explained in rejecting a similar expansion of the ascertainability requirement, such an approach trains the court’s attention, at a threshold juncture, exclusively toward the side of the ledger where costs and challenges are compiled. This focus means that full attention will not necessarily be given to countervailing considerations – such as whether these difficulties, although present, might nevertheless be effectively managed through application of the various tools and resources courts have at their disposal for effective supervision of a class proceeding, and whether, notwithstanding possible notice issues, an appropriately supervised class action nevertheless can be expected to deliver benefits that, from a comparative perspective, would make it preferable to alternative courses of action.

“Our view of the ascertainability requirement does not prohibit a court asked to certify a class from considering the separate question of notice to absent class members. Arguments and evidence relating to the provision of notice to the class conceivably could counsel against class certification insofar as they may show that another requirement for a proper class proceeding, aside from ascertainability, has not been met – e.g., that a class action would be unmanageable, even after due consideration is given to how manageability concerns could be resolved; or that a class proceeding would not be superior to the alternatives. But, at the risk of repetition, we conclude that these issues, where they exist, are appropriately addressed outside of and separately from the ascertainability requirement.”


Noel v. Thrifty Payless, 7 Cal.5th 955 (2019).