At long last, the Ninth Circuit has heard the cries of confused class action litigants and will be weighing in on whether self-identification of class members (without the benefit of a receipt or other indicia of purchase) is enough to pass the implicit ascertainability requirement of Rule 23.

As we have often commented on this blog, the split in treatment of purchasers of small-ticket items (the issue most notably addressed by the Third Circuit in Carrera) by district courts has resulted in disparate ascertainability rulings, and there is no certainty how courts (even within the same circuit) will come out on the issue. Some examples from our previous posts, include:

The case that could go down in history (or infamy, depending on how you look at it) is Jones v. ConAgra. Plaintiffs filed a class action alleging that the labels of Pam cooking spray, Hunt’s tomatoes, and Swiss Miss cocoa falsely represented that the products were “natural” or were natural sources of antioxidants. The case was separated into three classes, one for each of the products, and plaintiffs filed class certification motions for each of the classes.

On June 13, 2014, Judge Breyer of the Northern District of California denied certification of all three classes. Central to the denial was Judge Breyer’s finding that all three classes of products were not ascertainable.

The court, noting the split in California authority regarding ascertaining classes based on the memory of consumers alone, chose to follow those cases rejecting class member affidavits based on concerns about members’ “subjective memory problem.” Crucial to this finding was the fact that the product labeling for all three classes had significant variations over the years, some labels containing the challenged language, some not.

Because consumers were unlikely to remember which versions of which labels were purchased (indeed, plaintiffs’ own expert testified she had “no idea” whether one of the products she herself purchased had a “100 percent natural” claim on it), the court reasoned that none of the three classes could be ascertained through consumer affidavits alone).

Plaintiffs appealed the decision and, finally, the Ninth Circuit is poised to hear the question of ascertainability that has been flummoxing courts and litigants (particularly since the Carrera decision came out).

Plaintiffs filed their opening brief on November 21, 2014 challenging, among other things, Judge Breyer’s determination that the class is not ascertainable. Plaintiffs argued it was improper for Judge Breyer to “graft” the implicit ascertainability requirement onto Rule 23. To lead with this argument is somewhat surprising, as the applicability of ascertainability requirements to Rule 23 determinations is not really in debate. It would be shocking if the Ninth Circuit agreed with Plaintiffs on this point.

More expected is Plaintiffs’ argument that the ascertainability requirement was satisfied because they advanced objective criterion by which the class could be identified. Plaintiffs argued that the challenged representation appeared on all of the products (and “virtually” all of the tomato products sold in California during the time period) and that the court placed “undue importance” on products that did not contain the challenged representations (allegedly less than one-half of one percent).

At bottom, Plaintiffs’ challenge to the court’s determination basically amounts to a belief that the court applied the wrong standard and followed the wrong line of cases in determining that label variation and mistrust of class member affidavits deems a class unascertainable. This may not be the best tactic for plaintiffs, as the Ninth Circuit will review the decision for an abuse of discretion and it does not seem likely that choosing to follow one line of precedential decisions will be deemed an abuse of discretion, but only time will tell.

The briefing is not yet complete, and ConAgra is set to file an opposition brief on January 21, 2015. We will continue to follow this case, as it represents the first real opportunity the Ninth Circuit has taken to review an ascertainability ruling in the wake of Carrera. Hopefully, the Ninth Circuit will deal with the issue head on and resolve the split that has plagued both sides of the class action bar.