In Noel v. Thrifty Payless, Inc., No. S246490, 2019 Cal. LEXIS 5696, at *1 (July 29, 2019), the California Supreme Court followed the Seventh Circuit’s decision in Mullins v. Direct Digital, LLC (7th Cir. 2015) 795 F.3d 654, finding that in California the “ascertainability” requirement is satisfied so long as the class definition is stated in terms of objective characteristics and common transactional facts that make the ultimate identification of class members possible when that identification becomes necessary. It is not necessary at the class certification stage (or even later) for the plaintiff to show that class members can be identified. While class members must be given constitutionally adequate notice of the action, due process does not always require individual mailed or sent notice to each class member, only that the best notice that is reasonable under the circumstances must be given. Courts can best take notice problems into consideration after class certification. However, problems in identifying class members may be taken into consideration in determining manageability but must be weighed realistically against the benefits of proceeding as a class.
Determining whether a proposed consumer class was ascertainable under Code Civ. Proc., § 382, which was a requirement fairly subsumed in the need for a coherent represented class under Civ. Code, § 1781, subd. (b), did not require evidence of how members of the putative class would be identified for notice purposes under Cal. Rules of Court, rule 3.766(f), because due process was flexible, requiring only reasonable notice under the circumstances; -The class definition, which included all purchasers of a product at specified stores in California within the class period, satisfied the ascertainability requirement because it provided objective characteristics and common transactional facts enabling consumers to determine whether they were included in the class; moreover, the issue of how burdensome it would be to identify class members was distinct from ascertainability.