July 30, 2014
Authored by: James Smith
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 While this is an unpublished decision and short on