California Court Continues Ascertainability Trend, Denies Class Certification in Chipotle "Naturally Raised" Litigation

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Purveyors of mass-retail food products may have a new reason to rejoice this holiday season. On December 2, the U.S. District Court for the Central District of California, in Hernandez v. Chipotle Mexican Grill, Inc., quietly issued a three-page In Chambers Order denying class certification in a false advertising action challenging Chipotle's claim that its products contain "Naturally Raised" meat. The class certification denial alone is notable given California's famously broad consumer protection laws. Even more significant is the court's reasoning, which seems to stem from the growing trend among federal courts of barring class certification on ascertainability grounds.

The Chipotle decision is the latest instance of an emerging obstacle for consumer class action plaintiffs: How to confront the often insurmountable task of reliably identifying disparate members of a proposed class where few, if any members, have documentary proof of their purchases. Earlier this year, the Third Circuit in Carrera v. Bayer Corp. held that in consumer fraud class actions, class certification should be precluded on ascertainability grounds where members of the proposed class are unlikely to have documentary proof of purchase (e.g., packaging or receipts) and no record of specific retail sales exists.

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