Last summer, we blogged about a New Jersey federal court that refused to allow two women who purchased Skinnygirl margaritas to bring claims on behalf of everyone else who purchased the same margaritas in 43 states and the District of Columbia. That court explained that it could not certify such a class because Skinnygirl purchasers were unlikely to have kept receipts and there were no other objective records of their purchases.
This past Thursday, a federal court in Illinois came to the same conclusion, and refused to certify similar Skinnygirl margaritas claims that were brought by plaintiff Amy Langendorf on behalf of all Illinois purchasers. Like the plaintiffs in the New Jersey case, Ms. Langendorf challenges the use of the term “all natural” on the packaging and labels of Skinnygirl margaritas, which she contends was false and misleading because Skinnygirl margaritas contained sodium benzoate, an artificial preservative.
The court concluded that Ms. Langendorf’s claims could not be resolved in a single action on behalf of all Illinois purchasers of Skinnygirl margaritas. The court first explained that Ms. Langendorf did not offer any practical way to identify who these Illinois purchasers of Skinnygirl margaritas actually were, and this failure alone defeated her request to proceed as a class action. The court further noted that Ms. Langendorf had not sufficiently established that she could adequately represent the class, because her father had served as co-counsel with Ms. Langendorf’s counsel and had referred her to them. The court also concluded that Ms. Langendorf had not demonstrated that common questions predominated over individual questions, as necessary for class action treatment, because the court would need to consider what each purchaser believed about Skinnygirl margaritas and why she or he was purchased them.
To be sure, the court’s discussion of adequacy and predominance is interesting and worth a read. But the most notable portion of the decision, and the portion most relevant to other consumer fraud class actions (and class actions generally), is the court’s conclusion that class certification was improper because Ms. Langendorf had no way to identify class members. This aspect of the court’s decision adds to a growing list of cases that have rejected class certification when class members are not ascertainable since the Third Circuit’s 2013 decision in Carrera. As in the Skinnygirl cases, these courts have found class actions are not permissible when there are no receipts or other proofs of purchase for the relevant product and the plaintiff has no other way to determine who is in the class without testimony from each purchaser.
Last summer’s blog post identified many of these decisions. Since that time, courts have denied certification for similar reasons in cases based on purchases of kitty litter and baby food and the use of certain email services. We will continue to monitor and update these decisions going forward.