United States: Proving The Retail Transaction: Ascertainability In Food And Cosmetic Mislabeling Class Actions

Co-authored by Jessica Linse

Most consumers quickly discard receipts for food or cosmetics purchases, particularly when the items bought are low cost. This truism of human nature presents challenges to class certification when the consumer is the indirect purchaser, i.e., the consumer purchases the product at retail rather than directly from the manufacturer. Should putative class members get a ''pass'' on proving the sales transaction simply because the litigation is commenced by means of class action? Should courts certify classes against manufacturers when the reasons for and possible harm from retail purchasers may differ significantly among putative class members?

Ascertainability emerged as a prominent issue for class certification after Carrera v. Bayer Corp.1 Carrera and its Third Circuit kin2 set forth a two-part ascertainability test, requiring both that a ''class must be currently and readily ascertainable based on objective criteria''3 and that a reliable and administratively feasible method exists for determining whether putative class members fall within the class definition.4

The Circuits' Differing Treatment of Ascertainability

Despite having been the class action issue de jour in the past few years, Rule 23 does not expressly mention ascertainability. It is unsurprising, then, that circuit courts have approached ascertainability differently, so much so that at one point the issue seemed destined for Supreme Court review. The circuits do concur on the need to define a class using objective criteria. The difference hinges on their views on whether the plaintiff must also show ''administrative feasibility'' – or, the ability to feasibly ascertain the members of a class.

Carrera established a high bar, rejecting plaintiffs' argument that the putative class of Bayer One-A-Day WeightSmart diet supplement purchasers could be determined through affidavits and retail records of online sales and loyalty cards.5 The Third Circuit ruled that ''the plaintiff must demonstrate his purported method for ascertaining class members is reliable and administratively feasible, and permits a defendant to challenge the evidence used to prove class membership.''6 Proof through retail records was insufficient because there was no evidence that these records could identify purchasers or even that such records existed.7 Similarly, the court criticized proposed self-identifying affidavits because plaintiff's own inconsistent deposition testimony suggested it was unlikely that class members would remember the transactions.8 The Third Circuit in City Select9 tempered Carrera and declined to pronounce that ascertainability never could be established by self-identification affidavits.

Other circuits also require the heightened showing of an administratively feasible method of establishing class membership. Although unpublished, the Eleventh Circuit so ruled in Karhu v. Vital Pharmaceuticals, Inc.10 – a putative class action alleging false advertising brought by purchasers of a weight loss supplement. In affirming the trial court's denial of class certification based on ascertainability, Karhu instructed that ''the plaintiff must propose an administratively feasible method by which class members can be identified.''11 The Eleventh Circuit then echoed Carrera's reticence to certify a class shown by self-identification, ''without first establishing that self-identification is administratively feasible and not otherwise problematic.''12 Karhu leaned on Bussey v. Macon Cnty. Greyhound Park, Inc.,13 to counsel that identification of class members is administratively feasible when it is a ''manageable process that does not require much, if any, individual inquiry.''14 The Karhu court was concerned that due process required that defendants be given the opportunity to challenge class membership in an administratively feasible manner.15

The Fourth Circuit also requires more than a class defined through objective criteria. EQT Prod. Co. v. Adair16 involved five proposed class actions claiming the deprivation of royalty payments from the production of coalbed methane gas. Four of the five proposed classes included persons with interests in gas estates in property tracts that conflicted with interests owned by different persons in coal estates for those same tracts.17 The Fourth Circuit first explained that ''Rule 23 contains an implicit threshold requirement that the members of a proposed class be 'readily identifiable.'''18 While noting that not every class member must be identified during class certification, class members must be identifiable without resorting to ''individualized fact-finding or 'mini-trials.'''19 The EQT court concluded that it would be difficult to determine class membership based on the defendants' ownership schedules, as some had not been updated for decades, and local land records did not provide an easy method of determining ownership.20 The Fourth Circuit remanded for the district court to reconsider ascertainability, among other Rule 23 issues.21

The First Circuit in In re Nexium Antitrust Litigation22 paid homage to Carrera, and required an administratively feasible method of ascertaining class membership.23 It nevertheless permitted self-identification affidavits as an administratively feasiblemethod.24 Nexium involved a putative class complaining about alleged agreements that prevented the market entry of a generic alternative to Nexium, an over-the-counter heartburn medicine.25 Defendants argued against certification in part because the class would include both allegedly harmed persons and unharmed persons – those brand-loyal consumers who would choose to purchase Nexium at the same price even with a generic competitor.26 Nexium confirmed that ascertainability requires that the class definition must be sufficiently definite so that it ''allow[s] the class members to be ascertainable.''27 Relying on Carrera, Nexium explained that ''the court must be satisfied that, prior to judgment, it will be possible to establish a mechanism for distinguishing the injured from the uninjured class members.''28 While deferring to Carrera on the need for administrative feasibility, Nexium concluded that it was administratively feasible to determine class membership through self-identifying affidavits.29

Other circuits disagree, concluding that Rule 23 contains no administrative feasibility requirement for determining class membership. Perhaps both the earliest and most developed opinion was that of the Seventh Circuit in Mullins v. Direct Digital LLC.30 Mullins ruled that Carrera's heightened ascertainability requirement upset the balance of interests involved in class certification of a proposed class of dietary supplement purchasers.31 While acknowledging some of Carrera's concerns, Mullins concluded that ascertainability in the Seventh Circuit is limited to class definitions that are ''too vague or subjective, or when class membership [is] defined in terms of success on the merits (so-called 'fail-safe' classes).''32

The Sixth Circuit followed Mullins in Rikos v. Procter and Gamble Co.,33 and ruled that ascertainability posed no obstacle to the certification of a class of purchasers of Align, a probiotic nutritional supplement that purportedly promoted digestive health.34 In so doing, Rikos declined to follow Carrera, noting that membership in a class need not be determined with 100% accuracy.35 Despite rejecting Carrera, the Sixth Circuit, in Rikos, noted that the factual circumstances presented were distinguishable from Carrera, as more than one-half of the supplement sales were online, evidence that could be supplemented by customer membership records and physician statements.36 The Sixth Circuit thus concluded that putative class members could be identified through traditional models and methods.37

The Eighth Circuit concurred with the Sixth and Seventh Circuits in Sandusky Wellness Center, LLC v. Medtox Scientific, Inc.38 Sandusky involved the unsolicited receipt of a fax transmission from the defendant. The Eighth Circuit noted that the ''circuits diverge on the meaning of ascertainability,''39 but deferred to the Seventh Circuit analysis in Mullins to conclude that a class only '''must be adequately defined and clearly ascertainable''' – dispensing with any administrative feasibility argument.40

The Ninth Circuit also distanced itself from Carrera in Briseno v. ConAgra Foods, Inc.,41 declining to adopt a separate administrative feasibility prerequisite to class certification. Briseno involved classes of consumers in several states who allegedly purchased Wesson cooking oils labeled as ''100% Natural.''42 Like Mullins, the Ninth Circuit recognized limited categories of class definition deficiencies, such as: 1) indefinite definitions; 2) vague definitions; and 3) fail-safe definitions.43 The Ninth Circuit required only that the class be defined by objective criteria, as in whether class members had purchased the products.44 It did acknowledge, however, that Rule 23 otherwise addressed Carrera's policy concerns.45

At one point, it looked as though the Second Circuit might follow Carrera.46 Instead, in In re Petrobras Securities Litigation,47 the Second Circuit ruled that ''administrative feasibility. . . is neither compelled by precedent nor consistent with Rule 23.''48 The Second Circuit decided that ascertainability is established by showing that a proposed class is ''defined using objective criteria that establish a membership with definite boundaries.''49 Petrobras took the position that Carrera's heightened test seemed to ''duplicate Rule 23's requirement that district courts consider 'the likely difficulties in managing a class action,''' noting that ''manageability is a component of the superiority analysis.''50 Thus, Petrobras did not discard Carrera's concerns entirely; it recategorized them in a different Rule 23 compartment.

Most recently, the Fifth Circuit in Seeligson v. Devon Energy Prod. Co., L.P.,51 declined to adopt Carrera's heightened ascertainability standard. Instead, Seeligson ruled that ''a party need only demonstrate – 'at some stage of the proceeding' – that the class is 'adequately defined and clearly ascertainable.'''52 In contrast to EQT Prod., the Fifth Circuit ruled that public records provided sufficient objective criteria from which to identify royalty owners in Texas wells producing natural gas processed by defendant.53 These decisions certainly suggest that ascertainability is a function of the circuit in which a case is pending. The Third Circuit inquiry definitely will be more searching, while the inquiry in other circuits is limited. The circuit split, however, is not the entire story, as the factual premise for determining the parameters of the class also is important. The reliability of evidence for different product transactions varies. To be sure, it may be difficult to factually harmonize Carrera with Mullins. On the other hand, Rikos involved proof other than self-identification, with significant numbers of online sales and physician statements.54 Even Petrobras would agree that the facts of the transaction (i.e., cost of product, how and where distributed and product differentiation) could impact a class action's manageability. Therefore, to some extent, the specifics of the underlying transaction will impact class certification, in some instances possibly transcending the ''circuit split.'' Thus, in the First Circuit – where a showing of administration feasibility is required – a court may find that ascertainability is satisfied with minimal proof. Or, in the Second Circuit – where manageability is an alternative focus – a court could decline to certify if proof of the transactions is overwhelmingly difficult.

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* Jessica Linse is a recent graduate of the Emory University School of Law and was a summer associate at Duane Morris LLP in the summer of 2018.

1. 727 F.3d 300 (3d Cir. 2013).

2. Marcus v. BMW of North America, LLC, 687 F.3d 583 (3d Cir. 2012); Byrd v. Aaron's Inc., 784 F.3d 154 (3d Cir. 2015); City Select Auto Sales, Inc. v. BMW Bank of North America, Inc., 867 F.3d 434 (3d Cir. 2017).

3. Carrera, 727 F.3d at 305; Marcus, 687 F.3d at 593.

4. Byrd, 784 F.3d at 166.

5. 727 F.3d at 304.

6. 727 F.3d at 308.

7. 727 F.3d at 308-09.

8. 727 F.3d at 309.

9. 867 F.3d at 440-42.

10. 621 F. App'x 945 (11th Cir. 2015).

11. Id. at 947.

12. Id. at 948.

13. 562 F. App'x 782 (11th Cir. 2014).

14. Id. at 787.

15. 621 F. App'x at 948-49.

16. 764 F.3d 347 (4th Cir. 2014).

17. 764 F.3d at 355.

18. Id. at 358.

19. Id.

20. Id. at 359.

21. Id. at 371. On remand, changes to Virginia law after the Fourth Circuit appeal simplified the analysis and the district court certified three of five classes for at least some of the causes of action asserted. Adair v. EQT Prod. Co., 320 F.R.D. 379 (W.D. Va. 2017).

22. 777 F.3d 9 (1st Cir. 2015).

23. Id. at 19.

24. Id. at 20.

25. Id. at 13-14.

26. Id. at 17.

27. Id. at 19.

28. Id.

29. Id. at 20-21.

30. 795 F.3d 654 (7thCir. 2015), cert. denied, 136 S. Ct. 1161 (2016).

31. Id. at 658.

32. Id. at 657.

33. 799 F.3d 497 (6th Cir. 2015).

34. Id. at 525.

35. Id. at 525-26, citing Young v. Nationwide Mutual Insurance Co., 693 F.3d 532, 539 (6th Cir. 2012).

36. Id. at 526-27.

37. Id. at 527.

38. 821 F.3d 992 (8th Cir. 2016).

39. Id. at 995.

40. Id. at 996.

41. 844 F.3d 1121, 1123 (9th Cir.), cert. denied, 138 S. Ct. 313 (2017).

42. Id. at 1123.

43. Id. at 1124 nn.3 & 4.

44. Id. at 1124. See also True Health Chiropractic, Inc. v. McKesson Corp., 896 F.3d 923, 929 (9th Cir. 2018). Clay v. Cytosport, Inc., No. 3:15-cv-00165-L-AGS, 2018 WL 4283032, at *3, 2018 U.S. Dist. LEXIS 153124, at *7-8 (S.D. Cal. Sept. 7, 2018).

45. Briseno, 844 F.3d at 1133.

46. See Brecher v. Republic of Argentina, 806 F.3d 22, 24 (2d Cir. 2015)(acknowledging that Rule 23 included an implied ascertainability requirement).

47. 862 F.3d 250 (2d Cir. 2017).

48. Id. at 264.

49. Id.

50. Id. at 268.

51. 761 F. App'x 329 (5th Cir. 2019).

52. Id. at 334.

53. Id.

54. 799 F.3d at 526-27.

Originally published by MEALEY'S LITIGATION REPORT: Class Actions.

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