Amy Langendorf alleged that Skinnygirl Margarita, a pre-mixed alcoholic beverage, contains the non-natural preservative sodium benzoate, rendering the product’s “all natural” label false and misleading.  Langendorf filed suit against Skinnygirl in the Northern District of Illinois, seeking to represent a state-wide putative class of consumers in that state.  On October 30, 2014, the District Court denied class certification.  Langendorf v. Skinnygirl Cocktails LLC, No. 11 CV 7060 (N.D. Ill. Oct. 30, 2014). 

The District Court denied class certification due the threshold issue that Langendorf was unable to prove that class members were ascertainable.  Ascertainability contains a two-fold inquiry: (1) whether the class is defined by reference to objective criteria; and (2) whether the plaintiff has proposed a method for identifying class members with some evidentiary support that the method would be successful.

The Court held that while Langendorf satisfied the objective-definition requirement (individuals who purchased the product within the putative class period), she failed to offer any method by which the Court could determine the identities of the purchasers.  Discussing the Third Circuit’s decision in Carrera v. Bayer Corp. (which, as previously reported here, set the most in depth framework for analyzing ascertainability post-Walmart v. Dukes), the District Court noted that while “not bound by Carerra, * * * [it is] 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.”  While Langendorf argued that class members could be identified from different retail establishments, she offered no evidence that any such records in fact existed.  Further, the Court noted that because Skinnygirl does not sell directly to consumers, there would be no way (without individual mini-trials) to specifically identify class members, such that ascertainability was not satisfied.

The District Court went on to further hold that Langendorf failed to satisfy the adequacy of representation requirement under Fed. R. Civ. P. 23(a)(4) due to a personal relationship between Langendorf and the lead plaintiff’s counsel in the case.  Accordingly, the District Court denied class certification.