Tax Law

School During Summer: Florida District Court of Appeal holds Class of “Every Current and Future” Member cannot be Certified.

The Florida District Court of Appeal reversed the trial court’s certification of a class in a sales tax refund claim because the class was not “ascertainable.” Plaintiff filed suit against BJ’s Wholesale Club, Inc. (“BJ’s”) alleging that BJ’s thirty-one Florida stores improperly imposed sales tax on the full, undiscounted price of products purchased with a discount. The court held that the class was not ascertainable because: (i) the tax issue only affected Florida stores, (ii) members were not members of specific stores, and (iii) any member could make a purchase in a Florida store. Therefore, the court reasoned that BJ’s nationwide membership program, which was not tied to store location, could not be an ascertainable class because the membership program included every current and future BJ’s member or did not include anyone, as membership is not limited by state.


BJ’s Wholesale Club, Inc., and State of Florida Department of Revenue v. Laura Bugliaro, et al., Nos. 3D17-1495 and 3D17-1476 (Fla. Dist. Ct. App. 2019).