Daily Journal has published the article "Class ascertainability decision leaves open questions," written by Akin Gump litigation partners Michael Stortz, Neal Marder and Rex Heinke and associate Kelly Handschumacher. The article examines a California Supreme Court case, Noel v. Thrifty Payless Inc., looking at "the extent to which a proposed class must be ascertainable in order to be certified for class treatment." As the article notes, the ruling determined that "a proposed class must be defined by objective criteria."

According to the authors, the opinion by the California Supreme Court "addresses only incidentally the defendant's interest in an ascertainable class, and in particular, the defendant's due process right to present defenses to the claims asserted against it – including that a particular individual does not meet the objective criteria of the class certification." The Noel decision, they add, reserves a defendant's right to raise issues in opposing class certification. They write that it should also "permit the early dismissal of class action complaints that are premised on subjective or 'fail-safe' class definitions."