Another case finding that, because the product is cheap and
people don’t keep purchase records, and because somebody might lie to get a
piece of any ultimate settlement or award, no class action may be
maintained. Here the products are
ZonePerfect nutrition bars, whose “all-natural” claim is allegedly false and
misleading. Plaintiff brought the usual
California claims.
Plaintiff properly alleged standing by alleging her reliance
on the misrepresentation for a purchase, even if the product in question is not
“defective, overpriced, or of inferior quality,” and even if she didn’t pay a
premium for the product. “She bargained for a nutrition bar that was all
natural, and she allegedly received one that was not.” Plus, though she testified that she sometimes
buys all-natural products, that didn’t prevent her from also valuing all-natural
products.
However, the class was not ascertainable. ZonePerfect doesn’t have records of
purchases, since it mostly sells to retailers.
Affidavits would be insufficient, because the defendant couldn’t
challenge class membership that way, and fraudulent or inaccurate claims could
dilute the recovery of absent class members, undermining the finality of any
judgment with respect to them. Plaintiff
didn’t have any standard for determining class membership or weeding out
inaccurate or fraudulent claims.
Though district courts in the 9th Circuit are
split, the court found the rejectionist cases more persuasive. In response to the more flexible courts’
point that this ascertainability standard precludes class actions involving
low-value consumer products, the court noted that, while its standard “may
restrict the types of consumer classes that can be certified, they do not bar certification
in consumer class actions altogether.”
In some cases, retailer or bank records may allow determination of a
class membership. (Because consumers
lie, but banks don’t.) Anyway, the FDA could
define “all natural” or the California AG could sue over these kinds of claims. Just not
the people actually harmed.
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