On February 28, 2018, the Supreme Court of California granted the petition of Emergent LLP client James Noel to review the appellate decision denying certification of his class action lawsuit against Rite Aid, which sold Noel and 20,000 other California consumers an inflatable “Ready Set Pool” using packaging that deceptively exaggerated the size of the pool. A copy of the petition, which includes photographs of the pool and packaging, is here.

The Supreme Court’s decision on Noel’s petition could affect numerous class actions brought under California’s consumer protection laws. Rite Aid argued, and the appellate court agreed, that a class of pool purchasers could not be certified, because Noel had not shown that Rite Aid’s records contained enough contact information for the court to personally notify each class member of the lawsuit.

This rationale would apply to every consumer class action and, Noel argued, would spell the end of consumer class actions in California. Large retailers and manufacturers often do not retain individualized data about the sales of their products, and if consumer class actions could be defeated by an absence of contact information, companies likely to be sued for deceptive advertising, defective products, or any other mass consumer harm could insulate themselves by purging their purchase records or anonymizing those records so they retained the demographic information companies use to target their advertising, but eliminated the identifying information that would permit a class action.

The parties will submit their briefs to the Court between March and May, and the Court will then set a date for argument, likely in 2019. Emergent partners Peter Roldan and Christopher Wimmer represent the late Noel, who passed away in 2016, and his widow.

Emergent LLP has an active appellate practice, representing parties in the Court of Appeals for the Ninth Circuit, California Court of Appeal, and Supreme Court of California, as well as amici curiae in the Supreme Court of the United States. To find out whether Emergent can handle your appeal, contact us.