Why “Ascertainability” in Class Actions Matters: How a Kiddie Pool Could Threaten Workers’ Rights in California.

 Daniel Nesbit, Law Fellow

Daniel Nesbit, Law Fellow

Imagine this: an employer is violating its workers’ rights, but doesn’t keep official records. The workers decide to file a class action to challenge these workplace violations and request class certification. This is where “ascertainability” – a court-imposed requirement that class members be identifiable – comes into play. How a court handles the employer’s lack of recordkeeping in the context of evaluating ascertainability can determine whether the lawsuit can proceed as a class action.

When Plaintiff James Noel bought an inflatable swimming pool from a Rite Aid store in San Rafael, California, he was not thinking about “ascertainability.” Instead, Noel went home to set up the pool and realized the pool he bought was much smaller than the one pictured on the box. Feeling cheated, Noel filed a class action (Noel v. Thrifty Payless, Inc.) against Rite Aid for deceptive advertising, citing violations of California consumer protection laws.

 Noel purchased the pool pictured on the left, but he got the one on the right.

Noel purchased the pool pictured on the left, but he got the one on the right.

Ascertainability proved to be a roadblock for Noel’s consumer class action. Finding that Noel had not presented evidence to show how class members would be identified, the trial court refused to certify the class, holding that it was not ascertainable. Noel appealed. Relying on Sotelo v. MediaNews Group, Inc., which articulates a demanding and erroneous ascertainability standard, California’s First District Court of Appeal affirmed the trial court’s ruling.

Noel appealed to the California Supreme Court, which accepted review. The Impact Fund, joined by California Employment Lawyers Association, Centro Legal de la Raza, Legal Aid at Work, and Worksafe, filed an amicus brief to highlight the implications of a demanding ascertainability standard in the context of workers’ rights class actions.

 Our brief highlights the implications of a demanding ascertainability standard in the context of workers’ rights class actions.

Our brief highlights the implications of a demanding ascertainability standard in the context of workers’ rights class actions.

Our brief points to two fundamental problems with Sotelo. First, we argue that Sotelo mistakenly requires the identification of class members at the class certification stage, unduly prioritizing individual notice to every class member and at an unnecessarily early point in the process. Other California appellate courts properly interpret ascertainability to simply require a class definition that allows class members to self-identify. 

Second, Sotelo also requires that class members be “readily identified … by reference to official records.” Requiring official records creates the perverse incentive for employers to not maintain them. In extreme cases, employers may simply destroy records to avoid accountability. Under California Law, the consequences of shoddy recordkeeping or information asymmetry fall on the employer, not the wronged workers.

The heightened and burdensome standard for ascertainability articulated by Sotelo and applied in Noel v. Thrifty Payless, Inc. will prevent meritorious employment class actions and undermine workers’ rights. This result is at odds with California’s strong public policies favoring the class mechanism and the robust enforcement of workers’ rights. These public policies work in tandem as class actions allow workers to band together to economically pursue lost wages and mitigate justifiable fears of workplace retaliation. Wage theft and workplace discrimination remain pressing problems for workers across the country. The California Supreme Court should respond accordingly and affirm an ascertainability standard for class actions that allows workers to vindicate their rights.