627, 37 S.W.3d 590 (2001), where this court affirmed a denial of class certification because it was virtually impossible to identify class members and thus impossible to define the class.
In Kroger, the cause of action alleged that consumers were misled by Kroger's double-coupon promotion because Kroger advertised to the general public that it would double the value of a manufacturer's coupon on particular days, but Kroger discounted the amount of state sales tax against the enhanced coupon value with the net result being that customers received the double-coupon value less the sales tax on the enhanced value, which was remitted to the applicable state revenue department by Kroger. This court stated:
We acknowledge at the outset that defining the class size is not a specified prerequisite to class certification under Rule 23. But that alone does not decide the issue. This court has held that the exact number of a class need not be proved as a prerequisite for class certification. See Mega Life & Health Ins. Co. v. Jacola, supra; Cheqnet Systems, Inc. v. Montgomery, 322 Ark. 742, 911 S.W.2d 956 (1995); see also 1 Newberg on Class Actions, § 3.05 (3d ed. 1992). But at the same time, we subscribe to the recognized principle that in order for a class to be certified, a class must exist and that this is implicit in Rule 23. The treatise, Moore's Federal Practice, states the proposition succinctly and the reasoning behind it:A second distinguished treatise echoes these principles that class identity must be feasible and that rhe class cannot be excessively broad or amorphous. 7A Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, Federal Practice & Procedure § 1760 (2d ed. 1986); see also Adashunas v. Negley, 626 F.2d 600 (7th Cir. 1980)It is axiomatic that in order for a class action to be certified, a class must exist. The definition of the class to be certified must first meet a standard that is not explicit in the text of Rule 23, that the class be susceptible to precise definition. This is to ensure that the class is neither "amorphous," nor "imprecise." . . . Thus, before a class can be certified under Rule 23, the class description must be sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member of the proposed class. Furthermore, for a class to be sufficiently defined, the identity of the class members must be ascertainable by reference to objective criteria. 5 Jeremy C. Moore, Moore's Federal Practice § 23.2(1) (Matthew Bender 3d ed. 1997).
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