A Florida federal judge refused to certify a nationwide class of purchasers of Redline Extreme Energy Drink stating that the class lacked ascertainability (a topic we have previously addressed on this blog).

The plaintiffs claimed in Mirabella v. Vital Pharmaceuticals, Inc., S.D. Florida Case No. 0:12-cv-62086, that Vital Pharmaceuticals Inc. concealed the dangerous side effects of its Redline Xtreme energy drink, and attempted to certify a class composed of all purchasers of the approximately $3 drink since 2008.

The Court noted that ascertainability was a “threshold” requirement, such that the plaintiff must be able to demonstrate that the proposed class members “can be ascertained by objective criteria” that is “administratively feasible” with few “if any, individual inquiries.”

The plaintiffs proposed an extensive notice plan (using major media outlets and targeted notices posted at the retailers who sold the drink) coupled with an “experienced third-party class administrator” to weed out false claims, claiming that “[a]ny purported “administrative difficulties of establishing members of the class and providing appropriate notice do not negate the overall superiority of the instant class action over the alternative of piecemeal litigation.”

Denying plaintiffs’ motion to certify, U.S. District Judge William J. Zloch said the plaintiffs’ proposed method of establishing membership in the class through a nationwide notice program and a third-party administrator was inadequate because purchasers were unlikely to hold on to their receipts or remember how many bottles of the supplement they had purchased. “The Court finds that the Proposed Class is not clearly ascertainable since the class may not be ascertained on the basis of objective criteria.”

The Court concluded that because the drink sold for less than $3, purchasers were therefore unlikely to retain their receipts or other records of such purchases. Judge Zloch acknowledged that this factor was not dispositive, but said that the “Court’s conclusion is further supported by the existence of a variety of Redline® products, including Redline® Energy Drink RTD, the existence of which obfuscates the ability to objectively verify membership in the class.”

The judge said that the significant similarities between the drink at issue and the other Redline Energy Drink raised “concerns about the objective reliability of class member self-declaration, such as the ‘subjective memory problem’.” Relying on Jones v. ConAgra Foods, Inc. (currently before the Ninth Circuit), the Court said that the “subjective memory problem” is present when “a proposed class of individuals is unascertainable because there is no good way to identify such individuals and the Court cannot expect members of the class to recall the cumulative total of the product which they have consumed.” The Court noted that even the plaintiffs were unable to reliably recall or objectively prove how many bottles of the drink they consumed.

The Court also said that the fact that Redline conducts most of its sales through distributors, who, subsequently, sell to retailers, increases the likelihood that the class is unascertainable because Redline does not have documentation to determine the identities of the ultimate purchasers.

Plaintiffs immediately filed a motion for reconsideration of the Court’s order, or in the alternative, a motion to stay pending the 11th Circuit’s ruling in Karhu v. Vital Pharmaceuticals, which Judge Zloch promptly denied.

Mirabella provides another example of the successful use of the “lack of ascertainability” argument in consumer class actions involving small and inexpensive consumer products. This argument, however, continues to be decided differently depending on the judge. (Compare Sethavanish v. ZonePerfect Nutrition Co., In re Clorox Consumer Litigation, and Langendorf v. Skinnygirl Cocktails, LLC., all following the Third Circuit’s decision in Carrera v. Bayer Corp. with Lilly v. Jamba Juice Co. and Brazil v. Dole Packaged Foods, LLC.) The Ninth Circuit’s decision in Jones v. ConAgra Foods, Inc. will be an important one.