Alleging violations of Illinois statutory and common law, Amy Langendorf brought suit on behalf of “Any and all persons who purchased ‘Skinnygirl’ Margarita spirits in Illinois from March 1, 2009 until the date notice is disseminated” against Skinnygirl Cocktails, LLC, Bethenny Frankel, SGC Global, LLC, and Beam Global Spirits & Wine, Inc. According to Langendorf, “the text ‘all natural’ on the [Skinnygirl Margarita] label is false and misleading” because the product incorporates a “non-natural preservative.” On October 30, 2014, a Northern District of Illinois judge denied the putative class representative’s motion for class certification in Langendorf v. Skinnygirl Cocktails, LLC, et al.

In denying class certification, Judge Manish S. Shah largely relied on his finding that the proposed class was not ascertainable. Although not bound by it, the court was persuaded by the Third Circuit’s decision in Carrera v. Bayer Corp., 2014 WL 3887938 (3d Cir. 2014), which we covered earlier this year, in requiring a showing that some method existed to identify class members. The court acknowledged that “Carrera could be read to impose too high a burden on plaintiffs in consumer class actions,” but here the plaintiff had made no showing at all.

While Langendorf did supply “objective descriptions of prospective class members,” the court found that “plaintiff has not offered any method by which the court could find out who the purchasers were.” (emphasis added) The court elaborated that “Plaintiff says class membership can be verified by the dates of purchase, the locations of retail establishments, the frequency of purchases, the quantity of purchases, and the cost of purchase, but does not offer any showing that this can be done.” (internal citation omitted) The defendants, in turn, claimed that class members could not be determined “without individual mini-trials” “because they never sold the product directly to consumers.” The plaintiff bore the burden to show that the class members could be identified and, in the court’s view, Langendorf failed to meet that burden. As such, the class could not be ascertained.