The Ninth Circuit Court of Appeals has denied a request for interlocutory review of a class certification ruling in an action alleging that Blue Diamond Growers’ almond milk is mislabeled as “All Natural” and the company hides its added sugar content by listing “evaporated cane juice” (ECJ) on its label instead. Blue Diamond Growers v. Werdebaugh, No. 14-80084 (9th Cir., order entered August 22, 2014). Additional details about the suit appear in Issue 525 of this Update.

Blue Diamond challenged the district court’s ruling that the class was ascertainable, arguing that the decision “exacerbates a split of authority amongst district courts in this Circuit over the threshold showing that putative class representatives must make to demonstrate an ascertainable class in food mislabeling cases. The Third Circuit Court of Appeals—the only circuit to squarely resolve the issue—holds that sales records or other reliable evidence of product purchases must be available for a class to be found ascertainable, and several district-court decisions in this Circuit have applied that rule. Others, like Judge Koh here, have rejected the Third Circuit’s approach and found that a plaintiff can demonstrate an ascertainable consumer class based only on the expectation that class members will identify themselves with affidavits describing their product purchases.” The company also argued that the ascertainability standard “is critical for wholesaler class-action defendants, like Blue Diamond, who do not sell their products directly to consumers and have no independent, reliable means of identifying class members or their purchases.”

Blue Diamond further claimed district court error in finding that common questions predominate and argued that the ruling “created a split of decision when it found that [the plaintiff ] met his burden to propose a workable model to calculate damages.” Specifically, the company challenged the plaintiff expert’s regression damages model, noting that class counsel have about 50 currently pending food-labeling class actions in the circuit and “all appear poised to rely on [this expert’s] damages modeling to justify class certification.” Its brief concluded by contending that without interlocutory review, the issues would remain unsettled, “because, as a practical matter, these cases settle in the face of prolonged litigation.”