Just last month, New Jersey’s Appellate Division, in Daniels v. Hollister Co., held that “ascertainability” should not be considered as a factor by New Jersey trial courts when deciding whether to certify a class action.
Ascertainability places the burden on the plaintiffs’ counsel to demonstrate an objective method to identify, or ascertain, class members. Ascertainability is a difficult hurdle to overcome in many consumer class actions because consumers often do not keep receipts for low value items. This decision shows that New Jersey’s Courts are not necessarily persuaded by decisions out of the Federal Courts and will construe New Jersey’s law to protect consumers in class actions.
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