Just over a year ago, in March 2018, the Supreme Court granted review in Noel v. Thrifty Payless, no. S246490. Noel is a false advertising case under the UCL, CLRA and FAL (see this blog post). It presents the following question (according to the Supreme Court's docket):
Must a plaintiff seeking class certification under Code of Civil Procedure section 382 or the Consumer[s] Legal Remedies Act demonstrate that records exist permitting the identification of class members?
The Court of Appeal (First Appellate District, Division Four) said yes to this question, and therefore concluded that the proposed class of of approximately 20,000 persons who purchased a certain type of inflatable pool at Rite-Aid could not be certified. Noel v. Thrifty Payless, Inc., 17 Cal.App.5th 1315 (2017).
This holding appears to run counter to Daar v. Yellow Cab Co., 67 Cal.2d 695 (1967), which pronounced—50 years before Noel—that "[i]f the existence of an ascertainable class has been shown, there is no need to identify its individual members in order to bind all members by the judgment." Id. at 706.
Briefing was completed in November 2018. Numerous amicus briefs were filed. Last month, on March 15, 2019, the Supreme Court notified the parties that the case "could [be] set ... for argument within the next few months." Presumably, that means the May or June argument calendars, because the Court does not hear arguments in July or August. This case will be one to watch.
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