retail purchases mean class isn't ascertainable

Sethavanish v. ZonePerfect Nutrition Co., 2014 WL 580696, No. 12-2907 (N.D. Cal. Feb. 13, 2014)

Another case finding that, because the product is cheap and people don’t keep purchase records, and because somebody might lie to get a piece of any ultimate settlement or award, no class action may be maintained.  Here the products are ZonePerfect nutrition bars, whose “all-natural” claim is allegedly false and misleading.  Plaintiff brought the usual California claims.

Plaintiff properly alleged standing by alleging her reliance on the misrepresentation for a purchase, even if the product in question is not “defective, overpriced, or of inferior quality,” and even if she didn’t pay a premium for the product. “She bargained for a nutrition bar that was all natural, and she allegedly received one that was not.”  Plus, though she testified that she sometimes buys all-natural products, that didn’t prevent her from also valuing all-natural products.

However, the class was not ascertainable.  ZonePerfect doesn’t have records of purchases, since it mostly sells to retailers.  Affidavits would be insufficient, because the defendant couldn’t challenge class membership that way, and fraudulent or inaccurate claims could dilute the recovery of absent class members, undermining the finality of any judgment with respect to them.  Plaintiff didn’t have any standard for determining class membership or weeding out inaccurate or fraudulent claims.

Though district courts in the 9^th Circuit are split, the court found the rejectionist cases more persuasive.  In response to the more flexible courts’ point that this ascertainability standard precludes class actions involving low-value consumer products, the court noted that, while its standard “may restrict the types of consumer classes that can be certified, they do not bar certification in consumer class actions altogether.”  In some cases, retailer or bank records may allow determination of a class membership.  (Because consumers lie, but banks don’t.)  Anyway, the FDA could define “all natural” or the California AG could sue over these kinds of claims.  Just not the people actually harmed.