We have been covering developments relating to how courts are interpreting Rule 23’s implicit ascertainability requirement, and have noted that different courts facing the issue have articulated varying standards for how much evidence plaintiffs must offer to prove ascertainability in consumer fraud cases. For a refresher, see our posts hereherehere, and here.  As recently discussed, the Third Circuit’s decision in Carrera has proved to be a controversial one in that it seemed to raise the ascertainability bar for consumer fraud plaintiffs—too high, according to some.  Specifically, while the Carrera court  found that class members could theoretically be ascertained through a mix of loyalty and reward card purchases, online sales, and affidavits, the court still held that the plaintiffs’ methods for determining the identity of its class members in that instance were insufficient.  Many are left wondering what level of practical proof would be enough.  We may soon learn how the Ninth Circuit will answer this question in the Jones v. ConAgra Foods appeal.

Earlier this year, the Northern District of California denied class certification in a putative class action regarding allegedly misleading labeling on three different food products.  Jones v. ConAgra Foods, No. C 12-01633 CRB (N.D. Cal. June 13, 2014). Plaintiffs sued ConAgra Foods and attempted to certify three different classes (both 23(b)(2) and 23(b)(3)), one relating to each food product.  The crux of Plaintiffs’ claims is that the products at issue were labeled “All-Natural” when they in fact contained synthetic ingredients.  We have covered this issue extensively.

The court’s analysis noted that sister courts have taken varying approaches to ascertainability, stating that while “some courts have concluded that the ascertainability requirement cannot be met in the case of low-cost consumer purchases that customers would have no reliable way of remembering,” other courts “have found such classes ascertainable, largely out of a concern that to find otherwise would render a vast number of consumer class actions dead on arrival.”

In evaluating Plaintiffs’ ascertainability showing, the court explained that Plaintiffs proposed that putative class members identify the products they purchased by “photographic verification” and “through notice and by the requirement of sworn testimony that each class member purchased [the product at issue].”  The court found this proposed method for ascertaining the identity of class members “problematic.”  Aside from the fact that the honesty of self-identifying class members could not necessarily be verified, it might be impossible for even well-meaning plaintiffs to remember exactly which products they purchased over the several-year-long class period, and whether the labeling of those products contained the allegedly misleading statements.  As ConAgra pointed out, it sold dozens of varieties of the same product, with different shapes, sizes, ingredients, and labeling over time.  The court ultimately found that certification would be inappropriate where, as here, plaintiffs would not be able to accurately self-identify.

As you can imagine, the plaintiffs appealed denial of class certification.  And in late November, Public Citizen, Inc. and Center for Science in the Public Interest filed an Amicus Brief in Support of Appellants and Supporting Reversal.  Their argument is essentially this:

“The tools for ascertaining class membership and distributing recoveries traditionally have been calibrated to the circumstances of each case. Even where class-member identification would be imperfect, the alternative chosen by the court below would make the class-action device effectively unavailable in a case where the value of each class member’s claim is small. Thus, under the district court’s view of ascertainability, the alternative to a modicum of rough justice would be no justice at all, because an economically rational individual would not bring an individual suit.”

Amici referenced Carrera, and argued that under the Third Circuit’s view of the ascertainability requirement, plaintiffs may no longer have meaningful access to the consumer class action mechanism.  They argued that decisions like Carreraand Jones would make it impossible for many people injured by deceptive marketing or defective products to obtain relief and would also eliminate an effective deterrent of illegal conduct.  While amici acknowledged that ascertainability serves to protect absent class members’ due process rights, they argued that plaintiffs receive sufficient notice, for instance, through “reasonably calculated” methods, such as first-class mailings to known class members, notification through third parties, public postings, or other advertisements.  With respect to the concern that putative class members’ uncorroborated self-identification could harm defendants’ rights, amici argued that any concern regarding the accuracy of claims should be addressed not at the ascertainability stage, but at the remedy stage.

The Jones and Carrera decisions on one side, and the Jones amicus brief on the other, represent the divergent policy views on the ascertainability requirement. This requirement, far from being just a technical procedural issue, is shaping up to be determinative in class action policy. Where should the line be drawn? What is the proper balancing between defendants’ and plaintiffs’ rights? As more Circuit courts consider and define the contours of the ascertainability requirements for consumer class actions, defendants should continue to raise ascertainability challenges whenever possible.  Doing so could help shape outcomes for their own clients and beyond.