On June 13, 2014, U.S. District Judge Charles R. Breyer of the Northern District of California, issued an order denying class certification to a putative class of consumers who had purchased ConAgra food products labeled as “natural,” finding that the putative class was unascertainable due to the lack of purchase records or any other reliable method of identifying class members. The following week, on June 19, 2014, U.S. District Judge Audrey B. Collins of the Central District of California, issued an order granting class certification to a class of consumers who purchased a dietary supplement allegedly deceptively advertised as an aphrodisiac, rejecting similar arguments that the absence of retail purchase records rendered the class unascertainable. These decisions are just two of the latest examples of the deepening split within the Ninth Circuit on the issue of class ascertainability in cases involving low-cost or routine retail purchases for which consumers are not likely to keep receipts.

In Jones v. ConAgra Foods, Inc., No. C 12-01633 CRB (N.D. Cal.), plaintiffs alleged that defendant deceptively labeled its Hunt’s tomato products, PAM cooking spray products, and Swiss Miss hot cocoa products with various “natural” claims (e.g., “100% natural”, “natural source of antioxidants”) that were not supported by the actual product ingredients. Plaintiffs sought to certify three consumer classes, one for each category of food product at issue. Defendant opposed class certification on a number of grounds, including that the class was unascertainable.

The Court in Jones acknowledged that District Courts within the Circuit have split on the issue of whether or not the ascertainability requirement can ever be met in consumer class actions involving inexpensive retail purchases (due to the fact that consumers were not likely to retain receipts or have any other reliable way of recalling the purchase), and that some courts have found such class to be ascertainable primarily out of concern that finding otherwise would essentially eviscerate consumers’ ability to bring such class actions. Nonetheless, the Court sided with the line of cases within the Circuit (including the recent decisions in In re POM Wonderful LLC, No. 10-2199 (C.D. Cal.) and Sethavanish v. ZonePerfect Nutrition Co., No. 12-2907-SC (N.D. Cal.)), which found that the lack of purchase records or any other reliable method of identifying class members rendered the putative class unascertainable. However, the Court went on to note that ascertainability alone is “not dispositive” of the issue of whether class certification was appropriate, and ultimately found that plaintiffs had failed to satisfy several other requirements for class certification under Rule 23(b)(2) and 23(b)(3). In particular, the Court determined that plaintiffs also had not met their burden of proving that class treatment was superior to individual actions, noting that the same issues that rendered the class unascertainable also caused the class to be administratively unmanageable.

In contrast, the Court in Ortega et al. v. Natural Balance Inc. et al, Case No. 2:13-cv-05942 (C.D. Cal.), granted plaintiffs’ motion for certification, rejecting defendants’ arguments that the class was not ascertainable. In Ortega, plaintiffs alleged that defendants falsely advertised their nutritional supplement, Cobra Sexual Energy, as being an aphrodisiac and “scientifically formulated to improve virility.” As in the Jones case, defendants opposed class certification, arguing (among other things) that the class was unascertainable because there were no records of which consumers purchased the product.

Without any acknowledgment or discussion of the conflicting law within the Circuit, the Court found the class was “readily identifiable” by using the objective criteria set forth in plaintiffs’ class definition (i.e. “(1) all persons who purchased (2) Defendants’ Cobra Products (in all packaging sizes and iterations), (3) on or after January 1, 2006, (4) in California (5) for their own personal use (6) exclusive of Defendants’ officers, directors and employees.”). In rejecting the argument that the class was unascertainable because, in the absence of purchase records, there was no reliable way to identify class members, the Court held that identifying individual class members was “not germane to ascertainability.”

Given the growing District Court disagreement on the issue, the Ninth Circuit may soon need to weigh in (as the Third Circuit recently did in Carrera v. Bayer Corp.) on whether the lack of receipts or other purchase records poses an insurmountable hurdle to ascertainability in class actions involving low-cost or routine retail purchases which consumers were unlikely to recall or to retain proofs of purchase. In the meantime, class action defendants may want to pay particular attention to the issue of ascertainability when opposing class certification.