A New Class Ascertainability Standard

By Jeremy K. Robinson, CaseyGerry – The Los Angeles Daily Journal

On July 29, in Noel v. Thrifty Payless, Inc., S246490 the California Supreme Court announced the test for class “ascertainability” under California law: a class is ascertainable when it “defines the class in terms of objective characteristics and common transactional facts that make the ultimate identification of class members possible when that identification becomes necessary.”

To the observer outside the class action realm, this might seem like an answer in search of a question and unworthy of Supreme Court review. But defining the role of ascertainability in class certification has confounded courts and led to several different tests. In Noel, the Supreme Court resolved a split among the appellate courts in California, who had devised two different formulations. And, this divergence wasn’t merely academic—the more stringent of the two tests often proved insurmountable and thus fatal for class certification.

Jeremy K. Robinson is a partner at the San Diego law offices of Casey Gerry Schenk Francavilla Blatt & Penfield LLP, and chair of the firm’s Motion and Appellate Practice.