NOT TO BE PUBLISHED IN OFFICIAL REPORTS IN THE ... - FatWallet

Buy.com has all the necessary information about the individuals who purchased
“Connect3D rebate eligible products.” The problem is that Kershenbaum never states
whether the purchasers of Hannspree products are within this group. 2 “‘Ascertainability
is required in order to give notice to putative class members as to whom the judgment in
the action will be res judicata.’ [Citations.] The representative plaintiff need not identify
the individual members of the class at the class certification stage in order for the class
members to be bound by the judgment. [Citation.] As long as the potential class
members may be identified without unreasonable expense or time and given notice of the
litigation, and the proposed class definition offers an objective means of identifying those
persons who will be bound by the results of the litigation, the ascertainability requirement
is met.” (Medrazo v. Honda of North Hollywood (2008) 166 Cal.App.4th 89, 101.)
Kershenbaum argues that even if the class was not adequately defined, the
trial court had the discretion to redefine the class, quoting from Hicks v. Kaufman &
Broad Home Corp. (2001) 89 Cal.App.4th 908, 916: “Furthermore, if necessary to
preserve the case as a class action, the court itself can and should redefine the class where
the evidence before it shows such a redefined class would be ascertainable.” Although
Kershenbaum does not state it explicitly, presumably he means to argue that the trial
court should have removed the reference to Hannspree products from the class definition
in the proposed order.
2 At oral argument, Kershenbaum’s counsel advised the court that the inclusion of
the reference to Hannspree products in the proposed order was intended to avoid
confusion about the scope of the class. Specifically, counsel stated that six products sold
by Connect 3D were subject to rebates which were never paid; four of those products
were sold under the Connect 3D name, while the other two were sold under the
Hannspree name. Counsel could not, however, explain why the memorandum of points
and authorities did not also contain that language, speculating that the differing language
was the result of a “scrivener’s error.” Counsel conceded that by failing to ensure the
language of all the related documents contained the same definition, he caused far more
confusion than he prevented.
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