A putative class of plaintiffs filed suit against ice cream maker Ben & Jerry’s, alleging that labeling several of its frozen confections “all natural” when they contained alkalized cocoa made with artificial alkali constituted various violations of California statutory and common law.  At issue in the case, Astiana v. Ben & Jerry’s Homemade, Inc., No. C 10-4387 PJH (N.D. Cal. Jan. 7, 2014), is whether the named plaintiff met the requirements for class certification.

Relying on the Supreme Court’s decision in Comcast Corp. v. Behrend, 133 S.Ct. 1426 (2013), the Astiana court first set out the three evidentiary requirements that the plaintiff needed to meet for class certification.  One, the class must be ascertainable.  Two, if the class is ascertainable, then the plaintiff must prove the Rule 23(a) requirements of numerosity, commonality, typical, and adequacy of representation.  Three, if the first two requirements are met, then the plaintiff must also meet at least one of Rule 23(b)’s subsections.  In light ofComcast and the Supreme Court’s landmark decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), many courts are focusing on the ascertainability inquiry as a prerequisite to be met before addressing Rule 23.

Following suit with those other courts, the District Court first turned to ascertainability and held that the putative class in Astiana was not ascertainable for two reasons.  One, the plaintiff provided no evidence as to which ice cream contained the artificial alkali.  Ben & Jerry’s uses both natural and artificial alkali to make its alkalized cocoa, and the plaintiff could not show which ice cream contained which ingredient because the ice cream’s legally compliant packaging label only states that it is “processed with alkali.”  Two, the plaintiff could not provide any means for ascertaining that a class member’s ice cream contained the artificial ingredient.  Ben & Jerry’s uses alkalized cocoa from numerous sources and uses other ingredients made from alkalized cocoa, some of which do not identify which type of alkali they use.  Accordingly, the court found that the class was not ascertainable.

Despite finding no ascertainable class, which is a per se bar to class certification, the court held that typicality was not satisfied because the class was not ascertainable and because merely sharing exposure to the same packaging label did not establish that class members were deceived.  Even though the court found neither ascertainability nor that all the Rule 23(a) requirements were met, it nonetheless proceeded to address Rule 23(b).  The court held that the plaintiff could not meet Rule 23(b)(3)’s requirement that common questions of law or fact predominate because she could not provide sufficient “evidentiary proof” under Comcast.  Specifically, the plaintiff could not provide either evidence of damages or a model that would enable class-wide measurement of damages.  Accordingly, the court denied class certification because the plaintiff could not prove that an ascertainable class existed and could not satisfy the requirements of Rule 23(a) and (b).