Defendants often raise ascertainability when opposing class certification in food, beverage, and personal care products labeling litigation. District courts in the Ninth Circuit, however, sometimes reach different conclusions regarding a putative class representative’s burden when it comes to establishing ascertainability. Indeed, the subject has led to divergent decisions in the Northern District of California (often called “the food court”), with judges in that district commenting on the intra-district split. Two recent decisions, however, bolster defendants’ arguments that ascertainability in contested class certification proceedings (as opposed to settlement classes) is a significant hurdle for such plaintiffs to overcome.

Martin v. Pacific Parking Systems Inc., 2014 U.S. App. LEXIS 14200 (9th Cir. July 25, 2014), didn’t address consumer product labeling, but it addressed ascertainability. The Ninth Circuit affirmed the denial of class certification of claims under the Fair and Accurate Credit Reporting Act. While this is an unpublished decision and short on analysis, it may offer some insight regarding the Ninth Circuit’s leanings regarding ascertainability. That district court concluded that the putative class was not ascertainable because there was no reasonably efficient way to determine which of the possible class members used a personal credit or debit card, rather than a business card. That status was important because the claims purported to exclude anyone who used a business card for a transaction. Id. at *2-3. The Ninth Circuit agreed with the district court that the plaintiff “has not demonstrated that it would be administratively feasible to determine which individuals used personal, and not business, credit cards to purchase parking . . . .” Id. at *3. Notably, the Ninth Circuit also included a footnote addressing “self-identification” and ascertainability. We often see plaintiffs in product labeling class actions argue that self-identification is a viable way to identify class members—just have consumers provide affidavits attesting that they bought some quantity of the product during the class period. But in Martin, the panel suggested that such efforts would not work in a contested class action:

Self-identification may suffice for some settlement-only classes. But those classes need not satisfy Rule 23(b)(3)(D)’s “manageability” requirement. “Confronted with a request for settlement-only class certification, a district court need not inquire whether the case, if tried, would present intractable management problems, see Fed. Rule Civ. Proc. 23(b)(3)(D), for the proposal is that there be no trial.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1997).

Id. at *4 n.3. This footnote could be the beginning of the end for plaintiffs’ self-identification arguments in consumer class actions.

The other recent decision is In re Clorox Consumer Litigation, No. 12-00280-SC (N.D. Cal. July 28, 2014). Those plaintiffs challenged whether labeling on Fresh Step cat litter misleadingly suggested that product more effectively eliminated odors than products that do not contain carbon. Several problems existed with the proposed class, but the district court began with its ascertainability analysis. Judge Samuel Conti noted a split among courts in the Northern District of California regarding ascertainability, but he explained that he has followed Carrera v. Bayer Corp., 727 F.3d 300, 306 (3d Cir. 2013), in other consumer class actions. In this instance, the plaintiffs did not propose any method for determining who purchased Fresh Step during the class period. For example, none of the named plaintiffs kept their receipts. Moreover, even the named plaintiffs had difficulty remembering whether they bought Fresh Step, what sizes, types, or quantities. That type of uncertainty made it impossible to rely on affidavits from consumers (i.e., self-identification).

The plaintiffs argued that various retailers’ records could identify class members. Even those data, however, were incomplete and often depended on a customer participating in the retailer’s loyalty program. In sum, those types of retailer programs would capture, at best, a tiny fraction of all transactions involving a specific product.

While the thrust of the Clorox decision is ascertainability, Judge Conti also explained that predominance was lacking. Fresh Step labeling varied considerably during the proposed class period—not all included statements about the product’s superiority to other cat litter without carbon—making it impossible to conclude that all or even most class members saw the representations. While the plaintiffs pointed to “deceptive” television commercials, those commercials only ran for a limited part of the class period, so it was impossible to presume that most class members saw or relied on the advertising. In addition, Clorox pointed to survey evidence indicating that only 11 percent of customers who read packaging at all even looked at the back panel where the allegedly misleading statements appeared. The putative class also did not satisfy the superiority requirement, largely for the same reasons that ascertainability and predominance were lacking. Whenever possible, defendants will want to cite Martin in the Ninth Circuit to explain why self-identification does not solve the ascertainability issues that permeate food labeling class actions. In addition, Clorox is another instance of a judge in the Northern District of California embracing a meaningful ascertainability requirement. Clorox also provides a solid analysis of the lack of predominance in consumer product labeling class actions based on variations in packaging, the short duration of certain advertising programs, and survey data regarding consumer behavior.

James Smith is a partner in the Phoenix office of Bryan Cave LLP. He is a member of the Class & Derivative Actions Client Service Group and the Food and Beverage Team.