Nutrition Bar Class Cannot Be Ascertained, Court Refuses to Certify It

A federal court in California has denied the plaintiff’s request to certify a
class of those who purchased ZonePerfect Nutrition bars relying on allegedly
deceptive labels representing the products as “All Natural.” Sethavanish v.
ZonePerfect Nutrition Co., No. 12-2907 (N.D. Cal., order entered
February 13, 2014). The court found that the plaintiff set forth sufficient
evidence to establish that she had standing for the purpose of class certification,
despite paying more for other nutrition bars and sometimes purchasing
non-natural products.

Because the defendant “overwhelmingly sells to retailers, not directly to
consumers, and . . . there are no records identifying any but a small fraction
of consumers who have purchased ZonePerfect bars in the last several years,”
the court, however, agreed with the defendant that neither the class nor
the quantity of nutrition bars each member purchased were ascertainable
other than by affidavit. As to ascertainability, the court noted a circuit split
on the issue, but found the reasoning of Carrera v. Bayer Corp., 727 F.3d 300
(3d Cir. 2013), persuasive. The court in that case “found that the class was not
ascertainable because there was insufficient evidence to show that retailer
records could be used to identify class members. The court also rejected the
plaintiff’s contention that class membership could be determined based on
affidavits by putative class members, reasoning that this process deprived the
defendant of the opportunity to challenge class membership. Additionally,
the court held that fraudulent or inaccurate claims could dilute the recovery
of absent class members, and, as a result, absent class members could argue
that they were not bound by a judgment because the named plaintiff did not
adequately represent them.”

Issue 514