In light of the large number of baby food products at issue and differing product labels used during the six-year class period in litigation alleging misbranding and deceptive labeling against Gerber Products Co., a federal court in California has determined that the class is not ascertainable, a flaw “fatal” to the plaintiff’s motion for class certification. Bruton v. Gerber Prods. Co., No. 12-2412 (U.S. Dist. Ct., N.D. Cal., San Jose Div., decided June 23, 2014). Information about an earlier court ruling narrowing the claims in the case appears in Issue 511 of this Update.

While the court rejected the company’s reliance on Third Circuit precedent that ruled a class is not ascertainable when purchaser records are unavailable, it did agree with uncontested evidence that consumers would be unable to reliably determine whether they are eligible to join the class. Sixty-nine products were at issue, and 66 of them were “labeled both with and without the challenged labels during the class period.” The plaintiff’s method for identifying class membership would require consumers to recall whether they had purchased certain products in a qualifying flavor in the appropriate packaging and with a challenged label statement.

Accordingly, the court found, “The number of products at issue in this case, the varieties included and not included in the class definition, the changes in product labeling throughout the class period, the varied and uncertain length of time it takes for products with new labels to appear on store shelves, and the fact that the same products were sold with and without the challenged label statements simultaneously make Plaintiff’s proposed class identification method administratively unfeasible.” The court further granted Gerber’s sealing request in part as to pricing strategy and other confidential business matters. As to the part not granted, the court denied it without prejudice so that Gerber may file a narrower sealing request.