In Aguirre v. Amscan Holdings, Inc., Case No. 073059, 2015 Cal. App. LEXIS 214 (Cal. Ct. App. Feb. 11, 2015), a California Court of Appeal reversed the denial of certification of a putative class alleging violation of Civil Code Section 1747.08 of California’s Song Beverly Credit Card Act.  The trial court had denied certification because the plaintiff did not show the ability to identify, locate, and notify class members.  The court of appeal rejected that standard, and found that the class was, in fact, ascertainable because (1) the class definition contained a set of “common characteristics” that would allow class members to self-identify themselves, and (2) because the plaintiff had suggested an objective method for identifying class members.  This decision clarifies the standard for ascertainability in California state court class actions.

Plaintiff Aguirre, on behalf of a putative class of California citizens, filed a class action complaint alleging that the defendant had violated Section 1747.08 of California’s Song Beverly Credit Card Act by requesting and recording “personal identification information” in the form of zip codes from credit card customers at the point of sale.

The defendant moved to strike and dismiss plaintiff’s class allegations, and to deny class certification, in relevant part on the grounds that the class was not ascertainable because there was no means of identifying or locating potential class members.  The defendant did not possess documents identifying the names or addresses of customers who paid with credit cards or provided their zip codes to the defendant.  The plaintiff opposed the motion, arguing, in relevant part, that she was not required to establish a means for identifying or locating potential class members at the certification stage.  The plaintiff noted that customers’ receipts or credit card statements could be cross-referenced with the defendant’s records to determine whether a customer’s zip code was actually recorded.  The trial court granted defendant’s motion to deny class certification, holding that the plaintiff had failed to establish that the class was ascertainable.

The court of appeal reversed, holding that the trial court’s decision was improperly based on the plaintiff’s inability to “identify, locate and notify” class members.  Contrary to the trial court’s order, a class representative “need not identify, much less locate, individual class members” to satisfy the ascertainability requirement.  The class representative similarly need not establish how class notice will be disseminated to the class members.  At the certification stage, the class representative need only show that the class is ascertainable, meaning that there was objective evidence of class membership, namely the sales receipts or credit card statements that could be cross-referenced with the defendant’s records to determine class membership.  The court noted that while a defendant’s records often provide a means for identifying class members, the absence of those records does not preclude finding the class ascertainable.

The court relied on California Supreme Court precedent, noting that if the existence of an ascertainable class has been shown, individual class members need not be identified at the certification stage.  The fact that class members are not identifiable at the certification stage does not preclude a determination of class-wide issues.  The court distinguished other case law relied on by the defendant, noting that in this case, the class members’ claims were not so separate and distinct that each must present individual proof of all facts, and that objective evidence indicating class membership existed here.  The court further noted that requiring a plaintiff to establish a means of providing personal notice of the action at the certification stage was “inconsistent” with the liberal notice provisions of California Rules of Court Rule 3.766, which permits forms of notice that are “reasonably calculated to apprise the class members of the pendency of the action….”  Additionally, the fact that class members must come forward and establish their membership in the class did not render the class unascertainable.  Finally, the court rejected the defendant’s attempt to rely on the Third Circuit’s decision in Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013), noting both that it had been roundly criticized by district courts within the Ninth Circuit, and that it was distinguishable from the case at hand because class members in Carrera did not have verifiable records of class membership.

Amscan is another in a line of recent cases struggling with the ascertainability requirement of class certification. Courts continue to differ in their application of the ascertainability requirement.  Amscan, however, indicates that in California state court class actions, the ascertainability argument may be more difficult to for defendants to win.