As we recently posted, the Ninth Circuit will finally tackle the circuit split on ascertainability, agreeing to hear the appeal of a class certification denial in the case Jones v. ConAgra.

ConAgra’s answering brief has now been filed, in addition to amicus briefs filed by Public Citizen, Inc. and Center for Science in the Public Interest (in support of Levi Jones’s appeal) and the Washington Legal Foundation and The Chamber of Commerce of the United States (in support of appellee ConAgra).

ConAgra first laid out the reasons why ascertainability is important in response to Mr. Jones’s argument that ascertainability is not actually a requirement for class certification. ConAgra then went on to discuss why objective criteria are necessary in order to ascertain class members.

Unsurprisingly, ConAgra supported Judge Breyer’s adoption of a “nuanced” rule mandating that “affidavits are insufficient to establish ascertainability for a class based on low-cost consumer purchases likely to lack receipts where there are independent reasons to be skeptical about ‘class-members’ ability to accurately self-identify’ – especially where they are prone to face ‘subjective memory problems’ concerning which specific items they purchased vis-à-vis the class definition.”

ConAgra specifically noted Judge Breyer’s concern that the class was unascertainable because of the variance in the product labeling throughout the class period, with some labels bearing the the challenged representations while others did not. Consumers cannot, ConAgra argues, be counted on to remember which particular label of a product they bought during a multi-year class period, making it impossible to accurately determine which consumers are really part of the class.

ConAgra was also quick to point out that Judge Breyer did not conclude that a simple failure to retain a receipt means that a class is not ascertainable, instead citing other inconsistencies in labeling during the class period that would made it effectively impossible for a consumer to remember whether or not he or she purchased a product with the challenged representation. Such “nuance,” ConAgra claims, renders moot the “sky-is-falling” arguments of Mr. Jones and his supporting amici, who claim that upholding Judge Breyer’s decision will eviscerate class actions for low-cost products.

The briefing is complete, and the class action community eagerly awaits to hear whether the Ninth Circuit will support the “teeth” that some judges have chosen to give ascertainability. Certainly those lawyers in the defense bar view ascertainability as an important check on the ever-increasing number of false advertising class actions being filed in this country. As Glenn G. Lammi recently opined, these types of cases, where even named plaintiffs do not have any proof of ever purchasing the product, “are more money-making vehicles than genuine efforts at consumer protection – just the type of cases where application of ascertainability requirements are needed to protect the rights of defendants and absent class members alike.”

Even if the Ninth Circuit does not want to go so far as to say that receipts are necessary in all cases, it seems imperative (if ascertainability is to have any practical effect at all) that there be at least some way to screen who can become part of a class, above and beyond the simple say-so of an individual.  Otherwise, less-than-honorable plaintiffs’ attorneys will be increasingly able to pressure defendants into quick settlements by threatening lawsuits with huge (and easily joinable) putative classes. Lack of checks on these lawyer-driven, mega-lawsuits runs the very real risk that consumer class actions could simply devolve into a legal means of extortion.

Stay tuned for an update once the Ninth Circuit has reached a decision on this important issue.