No Ascertainability Required at Certification: Don Frederico Quoted in BNA Class Action Litigation Report

The New Jersey Superior Court, Appellate Division, recently affirmed a trial court’s certification of a class of customers who allege clothing retailer Hollister Co. voided more than $3 million worth of promotional $25 gift cards Jan. 30, 2010, even though the cards expressly said they didn’t expire. Hollister customers received the cards after buying more than $75 of merchandise.

Ascertainability, an implied prerequisite that has been read into Fed. R. Civ. P. 23, the federal rule governing class certification, requires that a class be defined by objective characteristics that allow for class members to be readily identified.

According to firm litigation partner Donald R. Frederico, this case is “a good example of a fundamental divide over the purpose and intended reach of the class action device,’’

‘‘Ideally, decisions whether to certify cases as class actions should balance the interests of putative class members in the efficient vindication of their rights, the interests of defendants in presenting their defenses, and the interests of the courts in affording all parties due process without becoming mired in unmanageable litigation.’’

Don Frederico, a senior trial attorney with more than 30 years of courtroom experience, currently focuses his practice on representing defendants in class actions. He is also the lead author of Pierce Atwood’s First Class Defense blog

Please click here for more of Don’s insights and Bloomberg BNA’s further discussion of ascertainability in class actions.