While we have seen defendant manufacturers defeat class certification bids on ascertainability grounds, a Northern District of California federal court issued an order on November 14th certifying a class of purchasers of Hain’s Avalon Organics and Jason cosmetic products despite Hain’s arguments that ascertainability was unmet. Brown v. The Hain Celestial Group, Inc., No. C 11-03082 LB (N.D.Cal. Nov. 14, 2014). The plaintiffs’ complaint alleges that manufacturer Hain falsely labeled and marketed its Avalon Organics and Jason branded products as organic in violation of the California’s Organic Products Act, Unfair Competition Law, Consumers Legal Remedies Act, and Commercial Code provision regarding express warranties. Plaintiffs moved for certification of two Rule 23(b)(3) classes, one for each product line.

The crux of the Brown plaintiffs’ allegations is that several Avalon Organics and Jason products contain less than 70% organic ingredients. While federal law regarding the labeling of food products as organic does not apply to cosmetic products, plaintiffs argued that California’s Organic Products Act requires that cosmetic products advertised, marketed, sold, labeled, or represented as organic in California be made of at least 70% organic ingredients.

One of Hain’s main arguments against class certification was that the proposed classes were not ascertainable because consumers could only self-identify and were unlikely to have receipts to prove their purchases (read my post and Melody Akhavan’s post about ascertainability, Rule 23’s implicit prerequisite, here and here). This was a good argument because, as we have reported, other defendant manufacturers have successfully challenged ascertainability, even in the Northern District of California. But the courts are split, even within the Northern District of California, as to whether to allow self-identification through affidavit for purposes of satisfying ascertainability. See, e.g., Bruton v. Gerber Prods. Co., No. 12-CV-02412-LHK, (N.D. Cal. June 23, 2014) (rejecting self-identification); Ries v. Arizona Beverages USA LLC, 287 F.R.D. 523 (N.D. Cal. 2012) (allowing self-identification).

The Brown court recognized that “[t]here is ultimately no ironclad rule on self-identification,” and “[p]roof by affidavit does not necessarily defeat ascertainability,” but “reliance on affidavits can be problematic.” The court concluded that the analysis “must be made on a case-by-case basis,” and because the court “thinks that . . . consumers [will be able to] accurately recall whether they bought an Avalon Organics product, or a Jason product that said ‘pure, natural, and organic,’ during the given period,” self-identification by affidavit is appropriate in this case. The court went on to find that plaintiffs had met all of the other prerequisites of Rule 23(a) as well as the predominance and superiority requirements of Rule 23(b)(3), and therefore certified the two classes of purchasers.

Unfortunately for Hain and other defendant manufacturers facing similar litigation, the Brown court not only found ascertainability where other courts may not have, but also added to the confusion with respect to ascertainability and the appropriateness of self-identification. The Brown decision is difficult to reconcile with some cases finding lack of ascertainability like the Bruton v. Gerber case, where a different court in the Northern District of California held that a class of baby food purchasers could not be ascertained because variety in baby food labels made it administratively infeasible to identify unnamed class members. The Brown court agreed that Bruton was a similar case, but differentiated the Avalon Organics and Jason products on the basis that the Gerber baby food products had rolling label changes such that 95% of the baby food products at issue were subject to label variation. The Brown court determined that because “[t]his case does not feature the same proliferating variety in labels,” it “does not similarly threaten to thwart class members’ recall.”

In finding that ascertainability was met because it “thinks that . . . consumers [will be able to] accurately recall whether they bought an Avalon Organics product, or a Jason product that said ‘pure, natural, and organic,’ during the given period,” the Brown court indicated that the outcome of an ascertainability inquiry will depend on whether the court thinks that consumers will be able to recall product packaging. So, at least for one judge in the Northern District of California, it seems that the most germane question for ascertainability will be how many label variations and changes are included in the proposed time period and whether those variations and changes are significant enough to convince the court that self-identification will be unreliable so that ascertainability cannot be met. It certainly does not make for a clear landscape.