State high court considers case that may affect many class actions

An appeal over an inflatable swimming pool, argued Wednesday before the state Supreme Court, may spill over to affect the viability of consumer and employment class actions across the state.

The matter presented an unsettled procedural question as to how precisely a putative class representative must identify his potential fellow plaintiffs, and the method by which they could effectively be noticed of the action, before a class can be certified under California law.

Leslie Brueckner, a senior attorney with Public Justice, argued that threshold inquiry demands of plaintiffs only that a proposed class be "defined sufficiently clear[ly]," such that qualified class members could recognize their inclusion in the action.

Brueckner said requiring more at the preliminary certification stage, and particularly demanding that plaintiffs find records identifying other class members, would effectively thwart representative actions.

"That standard is a class action killer," Brueckner said. "It will essentially make it impossible to certify a huge number of class actions where there are no official records that can be used to identify the class."

The plaintiff in the action, James Noel, bought an inflatable pool from a Rite Aid in San Rafael in 2013, lured, he claimed, by packaging advertising backyard recreation roomy enough for a family of five. But, blown up, Noel's new pool seemed to him "materially smaller" than the one pictured on the box.

Disappointed, Noel filed suit under California's unfair competition and false advertising laws, purporting to sue on behalf of "all persons who purchased the Ready Set Pool at a Rite Aid store located in California" within the four years preceding Noel's suit.

But the trial court refused to certify Noel's proposed class, finding it not "ascertainable" because Noel hadn't shown "what records are available" to identify his fellow dissatisfied pool purchasers. The 1st District Court of Appeal affirmed, emphasizing Noel "failed to articulate and support with evidence any means of identifying potential class members."

Michael D. Early, of counsel with Klein, Hockel, Iezza & Patel PC, who represented defendant Thrifty Payless Inc. doing business as Rite Aid, endorsed the appellate court's reasoning Wednesday, arguing trial courts can request supporting records that ensure a certified class could be identified and noticed.

"I think the court ... has the discretion to determine there are or aren't records," Early argued. "And those records either make it clear that the class definition is in fact as precise as the plaintiff believes, or in fact ... [it] is not."

Early, though, met with repeated sharp rejoinders from Chief Justice Tani Cantil-Sakauye, who emphasized that other, later stages of class action litigation are designed to deal with problems of notice and class manageability.

"Why do you need [records] at the ascertainability step?" Cantil-Sakauye asked. "The next step will be superiority, manageability, community of issues. Why do you need it there? What do all of the other requirements have to do if everything is placed in the ascertainability requirement?"

Justice Joshua Groban wondered whether not asking those tougher questions of plaintiffs and class counsel might encourage attorneys to pursue representative claims without fully considering whether insurmountable practical obstacles lay ahead.

"I worry that ... plaintiffs' counsel would be foolhardy to proactively try to explore this issue in discovery precertification because they may get an answer they don't like," Groban said. "Isn't the judge entitled to begin exploring those issues in any way preceding certification? Or must she just say, 'No, I see an ascertainability problem. It will be big and may be fatal but we're just not going to talk about it.'"

Brueckner replied that any plaintiffs' attorney "worth his or her salt" wouldn't bring a class claim without knowing it contains a substantial, manageable cohort.

While the matter before the court involves a consumer action, several employment law amici curiae added briefs to emphasize that a ruling in this case could easily deter class suits in labor lawsuits as well.