In a matter of first impression, a New Jersey appellate court found that whether a class is ascertainable – a factor that is commonly analyzed in federal court – played no role in its consideration of a “low-value” consumer class action.  In Daniels v. Hollister Co., the court determined that ascertainability is not implicitly contained within the state court counterpart to Rule 23 of the Federal Rules of Civil Procedure.  Rather, the court found that, where the express class requirements were present (numerosity, commonality, typicality, and adequacy of representation), a class could be certified without an examination of whether the class members were identifiable.   

In Daniels, the plaintiff alleged that defendant Hollister improperly voided $25 gift cards that were issued to more than three million consumers.  The trial court found that class certification was appropriate, and the defendant appealed on the basis that the class was not ascertainable.  The appellate court upheld the lower court’s determination and found that ascertainability is not implied in the Third Circuit certification analysis.  The court opined that the class-action vehicle is designed to empower “the smaller guy” and that application of an ascertainability standard to a consumer class with a low dollar injury thwarts the availability and fairness of the class device.   

The Daniels court distanced itself from federal decisions requiring a consideration of ascertainability by finding that the question of whether a class can be identified is distinct from whether it is properly defined.  The court went even further by criticizing the ascertainability doctrine, stating “that when the concept of ascertainability is applied inflexibly it becomes a device that serves to burden or eliminate nascent class actions without providing any societal benefit.”  The court also cautioned that application of the ascertainability analysis urged by the defendant would reward the retailer for failing to identify consumers when the defendant provided the gift cards:  “Allowing a defendant to escape responsibility for its alleged wrongdoing by dint of its particular record-keeping policies – an outcome admittedly un-troubling to some federal courts – is not in harmony with the principles governing class actions.”   

Daniels stands for the proposition that a plaintiff, at least in New Jersey court, may certify a class action without demonstrating that the members of the class can be identified.  The court made clear, however, that its decision was limited to “low value” consumer class actions, potentially leaving the door open for New Jersey courts to apply the ascertainability analysis to high stakes litigation.