Federal courts continue their divide on ascertainability requirements for small-ticket items in the wake of Carrera v. Bayer.

Just recently, district courts in California and Illinois (neither of which are bound by Carrera), took opposite stances in applying the 3rd Circuit decision, leaving litigants to wonder when or if the Supreme Court is going to weigh in on the decision.

Until clarification from a higher authority comes, a decision on class certification based on ascertainability can vary wildly, depending on where the case is and, frankly, the personal proclivities of the judge assigned to the case.

Lilly v. Jamba Juice

On September 18, Judge Jon S. Tigar out of the Northern District of California certified a liability-only class of purchasers of Jamba Juice home smoothie kits. Class representatives alleged that, despite being represented as “All Natural,” the kits contained allegedly non-natural ingredients: ascorbic acid, xantham gum, steviol glycosides, modified corn starch and gelatin.

Granting certification, Judge Tigar dismissed oft-cited concerns that:

  1. defendants could not be fairly bound to final judgment if it is impossible to actually deliver notice to class members; and
  2. defendants are robbed of their due process rights when membership in a class is established simply by the “say-so” of class members.

Regarding the first concern, the court held that direct notice to class members is not required and the problem was cured because plaintiffs’ counsel submitted a comprehensive notice plan attempting to provide direct notice to as many retail customers as possible.

Addressing due process concerns for defendants, Judge Tigar said this should not be a concern because defendant liability would not be determined through the class notice procedure, but through damages evidence provided by plaintiffs on summary judgment or at trial.

It is likely relevant that Judge Tigar did not certify a damages class in this case based on plaintiffs’ failure to show damages could be established on a classwide basis, in violation of Comcast. It may be that the court is dispensing with these due process concerns because it will not require defendant to pay unproven damages.

The court also dismissed concerns about false claimants diluting the settlement recovery of legitimate claimants, noting it would address this when and if it became a problem.

Certifying the liability class, Judge Tigar pointedly quoted statements from plaintiffs’ counsel that while Carrera “may now be the law in the Third Circuit, it is not currently the law in the Ninth Circuit.”

Langendorf v. Skinnygirl Cocktails

Taking the opposite stance, Judge Shah in the Northern District of Illinois refused to certify a class of purchasers of Skinnygirl Margarita products, determining the class was not ascertainable.

Like the Jamba Juice case, potential class members were unlikely to retain receipts for the beverages and defendants (who sold the products through third party retailers) did not have records of purchasers.

Plaintiffs nevertheless argued that class membership could be “verified by the dates of purchase, the locations of retail establishments, the frequency of purchases, the quantity of purchases, and the cost of purchase… .”

However, Judge Shah held that plaintiffs’ failure to show how such verification could occur did not meet their ascertainability burden “to demonstrate that the class can be identified….”

Judge Shah specifically acknowledged his personal choice to apply Carrera: “I am not bound by Carrera, but I am persuaded that in order for a class to be ascertainable, there must be a showing by plaintiff that some method exists to identify the members.”

Personal opinions of judges to predict class certification outcome?

Based on these discrepancies that, essentially, come down to whether a judge decides to cite and apply Carrera, the first thing any defendant in a federal class action should do is see which judge the case is assigned to and determine that judge’s history on application of Carrera. If these decisions are any indication, judge assignment now could literally make or break class certification if it comes down to ascertainability.