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INTRODUCTION
Richard M. Kershenbaum did not receive an advertised rebate on a product
he purchased through Buy.com, Inc.’s Web site. Buy.com contended the rebate was
offered by the product manufacturer, and it was therefore not responsible for
compensating Kershenbaum. Kershenbaum sued Buy.com, and sought class certification
of the lawsuit. The trial court denied the motion, and Kershenbaum appeals. We reverse.
The trial court erred in denying the motion for class certification. The
different definitions of the proposed class contained in the memorandum of points and
authorities and the proposed order did not warrant denial of the motion for lack of
ascertainability. Any confusion caused by the different definitions could and should have
been remedied by the trial court, either by correcting the proposed order, or by
independently drafting a new order.
We further conclude the trial court erred in denying the motion on the
ground that common questions of law did not predominate. The California choice-of-law
provision in Buy.com’s terms of use agreement applies to the claims asserted by the
class. Even if the choice-of-law provision did not apply, class certification was still
appropriate because significant contacts with California have been shown to exist, and
Buy.com cannot demonstrate that any foreign law, rather than California law, should
apply to the class claims.
the class were vague.
We also conclude the trial court erred in determining the claims asserted by
Finally, Kershenbaum had standing to assert a claim for misleading
advertising; the trial court erred in determining otherwise.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
On February 5, 2007, Kershenbaum purchased a Connect 3D memory card
from Buy.com for $30, with a $30 mail-in rebate. Kershenbaum sent in the appropriate
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