In the recent decision Mirabella v. Vital Pharmaceuticals, Inc., Case No. 12-62086-CIV-ZLOCH (S.D. Fl. Feb. 27, 2015) the plaintiffs attempted, but failed, to certify a nationwide class of all purchasers of an energy drink that allegedly caused harmful side-effects.  The plaintiffs brought claims under Florida’s consumer protection statute, known as the Deceptive and Unfair Trade Practices Act, as well as federal and common law breach of warranty claims.  The Plaintiffs sought to certify a class composed of all purchasers of the “Redline Extreme Energy Drink” (the “Product”) since 2008, a drink that retailed for approximately $3.00 per bottle.

Although the defendant asserted numerous arguments against class certification, the District Court in the Southern District of Florida only needed one:  Lack of ascertainability (a topic we have previously addressed on this blog).  The Court noted that ascertainability was a “threshold” requirement, such that the plaintiffs must first demonstrate that the proposed class members “can be ascertained by objective criteria” that is “administratively feasible” with few “if any, individual inquiries.”  Mirabella, p. 5.  Thus, to satisfy this requirement, the plaintiffs bore the burden of proposing a method of objectively identifying all purchasers of the Product since 2008 that would almost eliminate the need for individual inquiries.  This was a daunting task, particularly because the defendant mostly sold the Product to distributors who then, in turn, sold the product to retailers, who, finally, sold it to consumers.

To satisfy the ascertainability requirement, the plaintiffs proposed a substantial notice plan (using major media outlets and targeted notices posted at the retailers who sold the Product) coupled with an “experienced third-party class administrator” that would weed out false claims.  Mirabella, p. 6.  More specifically, the third-party administrator would use a claim form that asked a series of questions, requiring the claimants to (1) state where they purchased the Product (thereby allowing a cross-check against distributors and retailers that were known to sell the Product), (2) identify pictures of the Product’s label, (3) identify the form of the product (i.e., liquid, powder, pill, etc.), and (4) affirm their answers under penalty of perjury.  Mirabella, pp. 6-7.  Through these steps, the plaintiffs argued that the class was objectively and administratively ascertainable by eliminating incorrect/false claims made by potential class members.

The Court rejected the plaintiffs’ proposals.  While citing, with approval, similar cases from California district courts (including Red v. Kraft Foods, Inc., 2012 WL 8019257 (C.D. Cal. 2012) and Jones v. Conagra Foods, 2014 WL 2702726 (N.D. Cal. June 13, 2014)), the Court reasoned that, because (1) the class members would probably not have any objective evidence of their purchases (empty bottles, receipts, etc.) and (2) the defendant sold the Product through 100 distributors and lacked any ability to compile a master list of consumers, there was no way to objectively prove who purchased the Product.  Mirabella, p. 8.  Further, because the Product was similarly packaged to several of the defendant’s other energy drinks, there was a high risk that class members would not be able to accurately remember which products they purchased.  Mirabellaa, pp. 8-9.  Even if class members could objectively remember purchasing the Product (by recalling the packaging, for example), there was still the problem of reliably determining how much the class members purchased.  Mirabella, p. 9.  Indeed, the Court found it persuasive that even the named plaintiffs could not “recall or objectively prove how many bottles of the Product they consumed.”  Mirabella, p. 9.  Thus, without a proposal to overcome the “subjective memory problem” and without any records demonstrating who purchased the Product, the class was not ascertainable and the Court denied the class certification motion in full.

As Mirabella demonstrates, the “lack of ascertainability” argument, which is often used by defendants in consumer class actions involving small and inexpensive consumer products, continues to have traction in some courts (see e.g. Sethavanish v. ZonePerfect Nutrition Co., Case No. 12-2907-SC, 2014 U.S. Dist. LEXIS 18600 (N.D. Cal., Feb. 13, 2014); In re Clorox Consumer Litigation, Case No. 12-00280 SC, 2014 U.S. Dist. LEXIS 104183 (N.D. Cal. July 28, 2014)), even while other district courts reject these same arguments (see e.g. Brazil v. Dole Packaged Foods, LLC, Case No. 12-CV-01831-LHK, 2014 U.S. Dist. LEXIS 74234, (N.D. Cal. May 30, 2014); Lilly v. Jamba Juice Co., Case No. 13-cv-02998-JST, 2014 U.S. Dist. LEXIS 131997 (N.D. Cal. Sept. 18, 2014)).  Unless and until the various circuit courts of appeal weigh in, defendants in large scale consumer class actions should consider opposing certification on the basis that the class is not objectively and administratively ascertainable.