SAN FRANCISCO (Legal Newsline) – Rulings to be made by the U.S. Court of Appeals for the Ninth Circuit
on cases related to class certification could have a significant
impact on a split between federal court stances on how strict the criteria
for certification should be, especially for suppliers of dietary
supplements faced with lawsuits in California courts.
“If class members must have some kind of proof of purchase,
such as a receipt, to show they belong in the class, plaintiffs may be largely
unable to bring class actions for inexpensive consumer goods,” attorneys Kathleen
Harrison and Micheline Johnson of Baker, Donelson, Bearman, Caldwell &
Berkowitz PC told Legal Newsline.
the other hand, if no proof of purchase is required, there are fewer barriers
to class certification, and defendants may have to defend more class actions.”
The district courts split the center on the definition of an appropriate
class of plaintiffs, known as ascertainability, and the awarding class-wide
damages in class action lawsuits. Specifically, the courts have been at odds on
the issue of what proof a class of consumers needs to provide in cases
involving small, often undocumented purchases.
“The Ninth Circuit’s decision on the ascertainability issue
could be the difference between defendants being able to cut off liability
early on or having to litigate a class action lawsuit, which, due to the time
commitment and expense, can put pressure on defendants to settle,” Harrison and
In the false advertising case Briseno v. ConAgra Foods, Inc., the U.S. District Court for the
Central District of California granted certification of a class arguing against
ConAgra’s allegations that their product was 100 percent natural, The court based the class
definition on whether a consumer bought Wesson oils during the class period.
In comparison, the U.S. District Court for the Northern
District of California denied a request for certification of a class in Jones v. ConAgra Foods, Inc.. The court
found there was no way to determine who had purchased products with labels
making the claims in question about ingredients since the allegedly misleading labels
were changed during the class period.
In addition, damages were awarded to a class in Brazil v. Dole Packaged Foods, LLC, but
the District Court for the Northern District of California eventually decertified
the damages class because the class could not “isolate the price premium”
related to a claim that a product was improperly labeled as all-natural fruit.
Oral arguments in the Brazil
and Briseno appeals will be heard in
September. Jones has been stayed to
await the outcome of a Supreme Court ruling on a jurisdictional matter in Microsoft Corp. v. Baker.
In Microsoft, Harrison
and Johnson said the U.S. Supreme Court will decide whether a federal appellate
court has jurisdiction to review an order denying class certification after the
named plaintiffs voluntarily dismiss their claims with prejudice.
They said the
lower court denied class certification in Jones,
and Jones then voluntarily dismissed the case with prejudice. Later, Jones
appealed the district court’s denial of class certification. If the Microsoft ruling confirms the appellate
court’s jurisdiction, then the Ninth Circuit can hear the pending appeal.