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Ascertainability in Class Actions a Notable Hurdle for Plaintiffs

8/27/14 | Topic: Class Actions

Ascertainability, an implied prerequisite for class certification, requires both a sufficiently definite class definition and an administratively feasible way to determine whether a particular person is a class member.  (See, e.g., Wolph v. Acer Am. Corp., 272 F.R.D. 477, 482 (N.D. Cal. 2011).)  Notably, a number of California courts have recently denied class certification to purchasers of various products due to ascertainability issues, particularly where the purchasers lacked sufficient records of their purchases. 

The Central District recently relied upon such reasoning in decertifying the class in In re Pom Wonderful LLC, No. ML 10-02199 DDP (RZx), 2014 U.S. Dist. LEXIS 40414 (C.D. Cal. Mar. 25, 2014).  In this case, Plaintiffs acknowledged that, based on the volume of product sold, every adult in the United States was a potential class member.  (Id. at *23.)  Thus, the class ostensibly included millions and millions of purchasers.  Id.  Noting that “[f]ew, if any, consumers are likely to have retained receipts during the class period,” the court concluded, “[t]his case therefore falls well toward the unascertainable end of the spectrum.”  (Id.)  The court highlighted that “at the close of discovery and despite Plaintiff’s best efforts, there is no way to reliably determine who purchased Defendant’s products or when they did so.”  (Id.)

Similarly, in Sethavanish v. ZonePerfect Nutrition Co., No. 12-2907-SC, 2014 U.S. Dist. LEXIS 18600 (N.D. Cal. Feb. 13, 2014), the Northern District denied a motion for class certification because Plaintiff failed “to present any method for determining class membership, let alone an administratively feasible method.”  (Id. at *17.)  The court stated, “[i]t is unclear how Plaintiff intends to determine who purchased ZonePerfect bars during the proposed class period, or how many ZonePerfect bars each of these putative class members purchased.”  Id. at *17-18.  Additionally, the court expressed uncertainty as to “how Plaintiff intends to weed out inaccurate or fraudulent claims.”  (Id. at *18.)  Thus, “[w]ithout more, the Court [could not] find that the proposed class [was] ascertainable.”  (Id. at *18.)

Often times, ascertainability issues occur contemporaneously with—or are construed as—Rule 23(b)(3) predominance, superiority, and manageability concerns.  In Hodes v. Van’s Intern. Foods, No. CV 09-01530 RGK (FFMx), 2009 U.S. Dist. LEXIS 72193, at *11-13 (C.D. Cal. July 23, 2009), the Central District denied a motion for class certification due to “concerns about how Plaintiffs will identify each class member and prove which brand of Van’s frozen waffles each member purchased, in what quantity, and for what purpose.”  (Id. at *11.)  The court noted, “the likelihood that tens of thousands of class members saved their receipts as proof of their purchase of Van’s waffles is very low.”  (Id.)  Moreover, the court stressed that “Plaintiffs have not presented the Court with any indication of how to determine the amount of damages suffered by each class member,” which is problematic because “[t]he Court will not engage in its own investigation as to which of Van’s 19 frozen waffle varieties class members purchased, how much each class member spent, and whether those particular varieties contained nutritional inaccuracies.”  (Id. at *12.)  Ultimately, the court was not convinced that Rule 23(b)(3) had been satisfied because Plaintiff failed to demonstrate that “the common questions of Van’s liability would predominate over the individual questions of who purchased Van’s frozen waffles during the relevant class period, which kind of frozen waffles they purchased, how many they purchased, and whether the kinds they purchased contained false nutritional information.”  (Id. at *13.)

Recently, the Northern District relied upon Hodes in denying a motion for class certification in Turcios v. Carma Labs. Inc., 296 F.R.D. 638 (C.D. Cal. Jan. 7, 2014).  As an initial matter, the court agreed with Defendant “that the proposed class [was] not sufficiently ascertainable because it [was] overbroad.”  (Id. at 645.)  Specifically, the court stated, “the proposed class is overbroad because it would include consumers who already received refunds and, therefore, have not suffered any damages.”  (Id.; see also Minkler v. Kramer Labs. Inc., No. CV 12-9421-JFW (FFMx), 2013 U.S. Dist. LEXIS 90651, at *7 (C.D. Cal. Mar. 1, 2013) [concluding class not ascertainable and denying motion for class certification because class included members who had no injury and no standing to sue].)  Additionally, the court expressed concerns regarding manageability of the class action due to class member identification issues.  The court noted the high volume of units sold, and explained that here, “[a]s in Hodes, it is highly unlikely that class members have kept their receipts for the product at issue.”  (Id. at 649.)  Plaintiff contended that damages could be calculated using retailers’ sales data, but the court noted that Plaintiff had not provided “any method of verifying that self-identified class members suffered the alleged injury, or the amount of damages to which each class member is entitled.”  (Id.)  Thus, Plaintiff failed to meet his burden of showing that Rule 23(b)(3)’s requirements were met.  (Id.)

Importantly, these courts recognized that defining a class based on objective criteria does not alone make that class ascertainable; rather, determining whether each individual claimant satisfies that criteria must also be administratively feasible.  Plaintiffs are unlikely to certify a class where individual proof would be necessary to resolve class membership.  (See, e.g., Williams v. Oberon Media Inc., 468 F. App’x 768, 770 (9th Cir. 2012) [affirming denial of motion for class certification because proposed classes were not “precise, objective or presently ascertainable”].)  Pursuant to these recent decisions, defendants should stress class members’ lack of receipts or other objective proofs of purchase in consumer class actions.  Highlighting a plaintiff’s inability to establish a clearly ascertainable class can be a powerful tool in defeating class certification motions.