In the Third and Eleventh Circuits, Ascertainability Continues to be a Major Certification Hurdle

In Re: Tropicana Orange Juice Mktg. & Sales Practices Litig., No. 2:11-cv-07382, 2018 WL 497071 (D.N.J. Jan. 22, 2018)

The Skinny:  This is the latest food and beverage case from within the Third Circuit to solidify Carrera’s heightened ascertainability standard. The standard is particularly difficult to meet where the plaintiffs’ proposed plan for ascertaining the class cannot be credibly tied to information or documentation that is demonstrably (and not just theoretically) available.

The Meat and Potatoes: Plaintiffs brought claims against Tropicana for the alleged mislabeling and misbranding of Tropicana’s orange juice product, Tropicana Pure Premium (“TPP”). Plaintiffs alleged that Tropicana’s marketing of the product as “pure, natural and fresh from the grove” was false and deceptive because flavoring is allegedly added.

In addition to finding a lack of predominance, Judge William J. Martini of the U.S. District Court for the District of New Jersey denied class certification on ascertainability grounds. The Court rejected the plaintiffs’ expert’s proposal to create a computer program to identify class members based on retailer loyalty card numbers and information submitted by consumers.  The Court determined that the vast majority of relevant retailers lacked the ability to compile the very data plaintiffs’ expert claimed would be required.

In Re: Wasser v. All Market, Inc., No. 16-cv-21238, 2018 WL 5629906 (S.D. Fla. Sept. 26, 2018)

The Skinny:  The Eleventh Circuit also continues to apply a rigorous ascertainability standard.  Having retailer data is very important for establishing ascertainability when dealing with small ticket items for which consumers likely have not saved receipts.

The Meat and Potatoes: Judge Robert N. Scola of the U.S. District for the Southern District of Florida denied class certification in a consumer product deceptive advertising case brought against All Market Inc., the parent company of coconut water manufacturer Vita Coco.  Plaintiffs claimed that the slogan “born in brazil” on the Vita Coco container, led consumers to believe that Vita Coco is sourced only from Brazil, when in fact All Market sourced coconut water from Brazil and other Asian countries.

The court rejected the plaintiffs’ injunctive relief claim because they were not forced to continue purchasing the product and could not be deceived in the future. The Court also found the class was not ascertainabile because the Plaintiffs provided no third party sales data to indicate that self-identification would be a “manageable process” that would not result in “mini-trials.”