When a consumer feels she has been cheated by someone she bought a product or service from, the amount of her claim is often too small to warrant suing the seller. In that case, the consumer’s best bet is to collect a group of other consumers who have similarly been allegedly cheated and file a class action lawsuit. In order to successfully pursue a class action lawsuit though, a judge must grant the plaintiffs class action status, and in order for the judge to do that, the class of plaintiffs must fulfill certain requirements. These requirements include a class that is sufficiently large to warrant a class action, plaintiffs who can adequately represent the class, and complaints from class members that are sufficiently similar to warrant combining them into one action.
Another requirement that has caused much controversy in the courts lately is ascertainability, meaning there must be a way to identify all of the members of the class. This can be an issue in class actions filed against food producers or retailers, especially those who produce cheap food, for which consumers rarely keep their receipts. In Carrera v. Bayer, the plaintiff, Gabriel Carrera, sued Bayer on behalf of all consumers who had purchased Bayer’s One-A-Day WeightSmart diet supplement. According to the complaint, Bayer falsely advertised its diet supplement as having metabolism-boosting effects, based on the fact that it contained green tea extract.
Bayer argued that the class of plaintiffs was ineligible for certification because Bayer did not sell its product directly to consumers, and so it had no record of who had bought the product. Instead, Bayer sells to retailers like CVS Pharmacy, who then sell the product to consumers. Bayer also argued that, because people rarely hold onto their receipts of dietary supplements, there would be no way to verify who had purchased Bayer’s product and who had not.
Similar cases have managed to achieve class certification, though. Normally, in such cases, class members could be ascertained through affidavits from class members, but Bayer argued that such affidavits would be unreliable and the 3rd Circuit Court agreed. The ruling in favor of Bayer has resulted in a rash of uncertified class actions, but there may be more to the story. While some judges have outright rejected the 3rd Circuit Court’s ruling, others have made rulings in line with that of the 3rd Circuit Court’s decision, especially in similar cases dealing with food. The recent class action against Hershey’s regarding the company’s Special Dark chocolate is one example of a class action being defeated on ascertainability grounds.
Other judges though, have made some rulings in line with the Carrera v. Bayer decision, while making some rulings that appear to reject that decision. Judge Lucy Koh of San Jose, California, certified a class of plaintiffs in a lawsuit against Blue Diamond for allegedly deceiving consumers about the ingredients in its almond milk. Another class Judge Koh certified claimed that Dole had mislabeled several of its fruit products as “all natural”, but she refused to certify a class of plaintiffs trying to sue Gerber for allegedly making false claims about its baby food.
Because the Blue Diamond and Dole cases involved products with the same allegedly misleading labels and class periods that were relatively short, Judge Koh decided that consumer affidavits would likely be a reliable way to ascertain class membership. On the other hand, the lawsuit against Gerber involved 69 different products that were allegedly mislabeled over a five-year period. Unlike the Blue Diamond and Dole cases, Koh said that baby food consumers “will not be able to reliably determine whether or not they are eligible to join the class.”
This type of interpretation of the Carrera v. Bayer ruling gives hope to those who may have been concerned about the future of class actions. After the 3rd Circuit Court’s ruling, dissenting judge’s wrote they were concerned that “some wrongs will go unrighted because wrongdoers gamed the system,” but Koh’s rulings suggest that the 3rd Circuit Court’s decision contains some wiggle room for those courts that follow it. Many courts have out right rejected this approach altogether. Rather than banning all class actions that require affidavits to ascertain class members, the ruling can be interpreted to apply to only those classes in which determining the members of a class would be too difficult. The are other reasons for rejecting the approach such as fluid recovery which requires a seller to reduce its prices for a period to compensate its consumers for cheating them. This approach requires no affidavits as class members would not have to ascertained to provide them with damages through reduced pricing.
Our Chicago class action attorneys have have had success in defeating the ascertainability defense in a number of class actions including a nationwide class action against retailer Abercrombie & Fitch. We are currently litigating the issue in an appeal in New Jersey state court against Abercrombie’s sister company Hollister. We prevailed in the trial court and now await the decision of the New Jersey Appellate to see if it will affirm the trial court’s decision to certify the class action. Our Chicago class action lawyers near Lombard and Elmhurst bring class action, privacy law and individual consumer rights lawsuits. We bring suit for many types of class action lawsuits for consumer fraud issues and for unpaid overtime, junk fax, privacy rights violations, property damages due to pollution, false advertising and other claims. Super Lawyers has selected our Kane, DuPage and Cook County class action lawyers as among the top 5% in Illinois. Our Chicago class action attorneys only collect our fees if we win or settle your case. For a free consultation call us at our toll free number 630-333-0333 or contact us on the web by clicking here.