The recent wave of food and beverage class actions has moved into the class certification stage, and courts issued many class certification opinions in the first half of 2014.  These opinions demonstrate the continued difficulty in certifying food and beverage class actions, as only four[1] of the eleven[2] opinions analyzed certified a class.  In the majority of the cases, the Third Circuit’s ascertainability analysis in Carrera significantly impacted the certification decision. 

Recall that in Carrera v. Bayer Corp,[3] a putative class alleged that Bayer falsely advertised its One-A-Day WeightSmart vitamins.  The District of New Jersey certified the class despite Bayer’s argument that the class was not ascertainable, likening ascertainability to manageability and stating that “speculative problems with case management are insufficient to prevent certification.”[4]  On appeal, the Third Circuit vacated the decision, finding that the two proposed methods of identifying the class, retailer records and customer affidavits, did not satisfy Rule 23’s implicit ascertainability requirement.  First, the court held that “there [wa]s no evidence that a single purchase of WeightSmart could be identified” through retailer records.  Second, the court held that affidavits would not be sufficiently reliable and would not afford Bayer its due process right to raise individual challenges and defenses to class membership.[5]    Regarding the affidavits, the Court accepted Bayer’s argument that plaintiff “confused [the product at issue] with WeightSmart Advanced and other generic or similar products (none of which are part of this litigation),” indicating that the reliability of class members’ recall should not be presumed.[6]

Carrera ascertainability analysis was considered and disavowed in Brazil v. Dole Packaged Foods, LLC.[7] In this case, the Northern District of California certified a class of all California residents who purchased ten Dole products that were labeled “All Natural,” but contained allegedly synthetic ingredients.[8]  Relying on Carrera, Dole argued that the class was not ascertainable because it lacked company records to identify relevant purchasers.[9]  The court disagreed, holding that “[w]hile [Carrera] may now be the law in the Third Circuit, it is not currently the law in the Ninth Circuit.”[10]  The court continued, “[i]n this Circuit, it is enough that the class definition describes a set of common characteristics sufficient to allow a prospective plaintiff to identify himself or herself as having a right to recover based on the description.”[11]    Importantly, the court distinguished Carrera because “here all of the purchasers of the identified products are included in the class definition and all identified Dole products bore the same alleged misstatements,”[12] so plaintiffs could likely proffer reliable affidavits demonstrating class membership.  Thus, a consumer would only have to remember that she bought the product as opposed to identifying a version with a particular label.  Notably, the decision does not mention due process but focuses instead only on the reliability of the affidavits, apparently implying that a sufficiently reliable affidavit provides the due process to which a defendant is entitled.  The same judge issued a similar order in Werdebaugh v. Blue Diamond Growers,[13]  holding that “here all of the purchasers of Blue Diamond’s almond milk products are included in the class definition, and all cartons of the challenged almond milk products bore the alleged mislabeling,”[14] so plaintiffs could likely proffer reliable affidavits confirming class membership.  The court again focused on the affidavits’ reliability and did not discuss due process explicitly. 

In Lanovaz v. Twinings North America, Inc.,[15] where the court only certified an injunctive relief class, plaintiffs alleged that Twinings had improperly labeled 51 varieties of teas as a “Natural Source of Antioxidants.”[16]    Finding that the class was ascertainable despite the absence of records identifying purchasers, the district court noted that courts in the Ninth Circuit had found many similar classes to be ascertainable and that ruling otherwise “would be the death of consumer class actions.”[17]  Like the courts in Brazil and Werdebaugh, the Lanovaz court cited McCrary v. The Elations Co. LLC,[18] holding that “[i]n this Circuit,  it is enough that the class definition describes a set of common characteristics sufficient to allow a prospective plaintiff to identify himself or herself as having a right to recover based on the description.”[19]  The court again did not discuss defendant’s due process rights.

Ebin v. Kangadis Food, Inc.,[20] is one of two class certifications decisions in the first half of 2014 that comes from a non-California court.  In Ebin, the Southern District of New York certified a class consisting of all persons who purchased Capatriti 100% Pure Olive Oil, which plaintiffs alleged was improperly labeled as “100% Pure.” Interestingly, the Ebin court questioned the ascertainability of the class but declined to deny certification on this ground.  The court opined that “plaintiffs d[id] not point to any records that can objectively determine membership in the proposed class. Nor is it likely that consumers consistently maintain[ed] receipts of their purchase or the actual tins or bottles.  Indeed, plaintiffs here have neither the Capatriti they purchased nor any receipts or documentation proving their purchases.”[21]   But, the Ebin court, quoting In re Visa Check/Mastermoney Antitrust Litigation,[22] reasoned that “the Second Circuit has instructed that ‘failure to certify an action under Rule 23(b)(3) on the sole ground that it would be unmanageable is disfavored and should be the exception rather than the rule.’”[23]  The court continued, “the class action device, at its very core, is designed for cases like this where a large number of consumers have been defrauded but no one consumer has suffered an injury sufficiently large as to justify bringing an individual lawsuit. Against this background, the ascertainability difficulties, while formidable, should not be made into a device for defeating the action.”[24]  Once again, the court failed to address defendant’s due process right to challenge class membership, instead equating ascertainability only with manageability.

Despite California’s seemingly permissive approach to ascertainability, the Central District of California decertified a class in In re POM Wonderful, LLC,[25] on ascertainability grounds.  It reasoned that because of limited sales records and because the allegedly misleading 100% Juice statement was made only in Pom’s advertising, but not on the product label, it would be too difficult to identify those purchasers who saw the alleged misleading statement.[26] 

Several other 2014 decisions refused to certify classes on ascertainability grounds for similar reasons.  For example, in Astiana v. Ben & Jerry’s Homemade, Inc., the court held that it was impossible to determine which consumers’ ice cream contained synthetic alkalized cocoa (the alleged unnatural ingredient) because only one of fifteen cocoa suppliers used the allegedly synthetic ingredient.[27]  Similarly, in Sethavanish v. ZonePerfect Nutrition Co., another “All Natural” case involving alkalized cocoa powder, the court held that the proposed nationwide class was unascertainable because “it [wa]s unclear how Plaintiff intends to determine who purchased ZonePerfect bars during the proposed class period, or how many ZonePerfect bars each of these putative class members purchased.”[28]   

Finally, in Bruton v. Gerber Products Co.,[29] the same judge who certified the classes in Brazil and Werdebaugh declined to certify a class of California purchasers who bought Gerber baby foods that were allegedly mislabeled “Excellent Source of,” “Good Source of,” “Healthy,” or “No Added Sugar.”  Gerber argued that the class was unascertainable because it did not keep records of who purchased its products, but the court rejected that argument in light of its rulings in Werdebaugh and Brazil.[30]    The Bruton court, however, ultimately held that the class was unascertainable because of “[t]he 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 ma[d]e Plaintiff’s proposed class identification method administratively unfeasible.”[31]  The court in Jones v. ConAgra Foods, Inc.,[32] similarly held that subclasses of purchasers of Hunt’s tomato products, PAM cooking spray, and Swiss Miss hot cocoa were not ascertainable because of the potential unreliability of purchaser’s memories given the number of products at issue and label changes that occurred throughout the class period.

As seen above, in the wake of the Supreme Court’s recent attention to class actions, many courts are taking a harder look at the class certification question.  These 2014 food and beverage cases suggest that defendants should continue to develop a robust factual record at the class certification stage that provides a developed basis for challenging ascertainability.  Overall, the cases demonstrate that the particular court continues to have a large impact on the certification decision, and inconsistency in the class certification decisions remains the norm.

For more information on other trends seen in food and beverage class action litigation, click here.