A federal court in California has denied the plaintiff’s request to certify a  class of those who purchased ZonePerfect Nutrition bars relying on allegedly deceptive labels representing the products as “All Natural.” Sethavanish v. ZonePerfect Nutrition Co., No. 12-2907 (U.S. Dist. Ct., N.D. Cal., order entered February 13, 2014). The court found that the plaintiff set forth sufficient evidence to establish that she had standing for the purpose of class certifica- tion, despite paying more for other nutrition bars and sometimes purchasing non-natural products.

Because the defendant “overwhelmingly sells to retailers, not directly to consumers, and . . . there are no records identifying any but a small fraction  of consumers who have purchased ZonePerfect bars in the last several years,” the court, however, agreed with the defendant that neither the class nor the quantity of nutrition bars each member purchased were ascertainable other than by affidavit. As to ascertainability, the court noted a circuit split on the issue, but found the reasoning of Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013), persuasive. The court in that case “found that the class was not ascertainable because there was insufficient evidence to show that retailer records could be used to identify class members. The court also rejected the plaintiff’s contention that class membership could be determined based on affidavits by putative class members, reasoning that this process deprived the defendant of the opportunity to challenge class membership. Additionally, the court held that fraudulent or inaccurate claims could dilute the recovery of absent class members, and, as a result, absent class members could argue that they were not bound by a judgment because the named plaintiff did not adequately represent them.”