Noodle Class Action Dismissed

A California federal court recently dismissed a proposed class action over alleged trans fat in defendant's Cup Noodle products. See Guttmann v. Nissin Foods (USA) Co. Inc., No. 3:15-cv-00567 (N.D. Cal. 8/17/15).  The reasoning may be interesting to our readers.

Plaintiff's complaint cited numerous studies that have associated the consumption of artificial trans-fat to increased risk of certain medical conditions such as cardiovascular heart disease, and alleged that there is ‘no safe level’ of artificial trans fat intake.  While the case was pending, the Food and Drug Administration issued a final determination that partiallyhydrogenated oils are no longer “generally recognized as safe.” 80 Fed. Reg. 34650 (June 17, 2015). Pursuant to that determination, manufacturers must remove partially-hydrogenated oils from their products within three years.

Guttmann claims that he assumed all of Nissin’s noodle products were safe to consume, because of inadequate labeling.  He also claimed he was economically harmed because he was deprived of the benefit of his bargain, having thought he got safe food when, in fact, he got unsafe food.

Guttmann was, however, a plaintiff in at least four other lawsuits regarding artificial trans-fat and food labeling, against The Quaker Oats Company, Hostess Brands, Inc., Ole Mexican Foods, and 
La Tapatia Tortilleria.  Thus, he was was aware that (i) products could be labeled “0g Trans Fat” under FDA regulations if they contained less than 0.5 grams of trans-fat, (ii) partially-hydrogenated oils contained artificial trans-fat, (iii) he could check the ingredients labels on food products to see if they contained partially-hydrogenated oils, and (iv) artificial trans-fat was linked to health risks. It was undisputed that Nissin listed partially-hydrogenated oils among the ingredients on all of its product labels, and judicial notice was taken of the contents of the product  labels. Thus, the court found that plaintiff should have been keenly aware of the alleged injury he might suffer by eating Nissin’s noodles, and he knew he could have avoided any such injury caused by Nissin by simply checking the product label. This fact was fatal to Guttmann’s claims.

Interesting procedural note: plaintiff argued that his litigation history was not contained within the pleadings, and so could not be considered in this motion to dismiss.  Although allegations of fact in a complaint are accepted as true for the purposes of adjudicating a motion to dismiss, such allegations may be rejected if contradicted by matters properly subject to judicial notice. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).

On the consumer fraud claim, the court noted an act or practice cannot be unfair within the meaning of California Code Section 17200 if it caused an “injury the [plaintiff] could reasonably have avoided.” Daugherty v. American Honda Motor Co., Inc., 144 Cal. App. 4th 824, 839 (2006). Since commencing his litigation campaign, plaintiff could reasonably have avoided any injury based on Nissin’s alleged use of artificial trans-fat by reading the nutrition-facts panel and deciding not to purchase or consume them based on the presence of partially-hydrogenated oil.

And on the implied warranty claim, the court noted it need not determine whether a typical consumer could have a claim for breach of the implied warranty of merchantability because Guttmann was not a typical consumer but is "a self-appointed inspector general roving the aisles of our supermarkets. He continues on a five-year litigation campaign against artificial trans-fat and partially-hydrogenated oil" and has admitted that he has inspected products for those ingredients before. Guttmann’s apparent refusal to inspect Nissin’s noodles for an alleged defect despite his extensive knowledge of and concern for this particular ingredient was fatal to his claim for breach of the implied warranty of merchantability.

Action dismissed.

"The Rise of Empty Suit Litigation"

Two of my partners here at SHB, Victor Schwartz (of the famed “Schwartz on Torts” casebook) and Cary Silverman, just published a new article, “The Rise of “Empty Suit” Litigation®. Where Should Tort Draw the Line?”,  80 Brook. L. Rev. 599 (2015) .  

The article focuses on litigation where an individual or class action plaintiff has suffered no real harm, physical, emotional or economic.  These include:

·         claims for recovery of speculative emotional harm;

·         liability for the estimated cost of medical monitoring following exposure to a potentially harmful substance absent a physical injury;

·         class action litigation claiming that a product’s actual value was lower than the purchase price or that the resale value of a product diminished because of an alleged latent defect, even when the product functioned properly for most or all consumers; and

·         class actions challenging product labeling or advertising on behalf of all consumers where few, if any, of them were actually misled.

Empty Suit Litigation®” addresses both individual claims where there has been no real injury or economic loss, and class actions that rely on speculative or expert-driven theories of harm or class-wide damages.

Definitely worth checking out.  


Another All Natural Class Shot Down

A federal court rejected a proposed class of  New York consumers challenging the “all natural” labeling of four Crisco oils that allegedly contained genetically modified ingredients.   See Ault v. J.M. Smucker Co., No.13-03409 (S.D.N.Y., 8/6/15).

On May 21, 2013, Plaintiff Adrianna Ault filed a complaint alleging that Defendant violated N.Y. Gen. Bus. Law ("GBL") §§ 349 and 350, and breached an express warranty by labeling certain Crisco cooking oils as "All Natural." Plaintiffs proposed class included: consumers who purchased one or more of the following products in New York: Crisco Pure Vegetable Oil and/or Crisco Pure Com Oil between February 15,2 009 and June 1, 2014; and/or Crisco Pure Canola Oil and/or Crisco Natural Blend Oil between June 1, 2010 and June 1, 2014.

According to Plaintiff, the "All Natural" label was deceptive for two reasons. First, Defendant allegedly purchased from third parties the crude soy, canola, and corn oils from which it
manufactures its cooking oils. Some of such crude oils were allegedly derived from GMO crops, and Defendant allegedly did not differentiate between GMO and non-GMO crops when purchasing crude oils.  Second, Plaintiff argued that the "All Natural" label was misleading because the Natural
Label Oils were "heavily processed" using chemicals: after Defendant purchases source oils from its suppliers, it allegedly refined the oils using a multi-step process,  Plaintiff argued that, as a result, the Natural Label Oils are chemically altered and highly processed, and cannot be considered "natural."

Plaintiffs moved for class certification.  Defendant responded that class certification is improper because the term "natural" is not susceptible to a uniform meaning. The Food and Drug Administration has declined to adopt a definition of "natural," Consumers define "natural" in diverse ways. Defendant pointed to a survey conducted by its expert, which determined that 55% of respondents could not define or did not even know what "All Natural" cooking oil meant.

Defendant argued that class certification must also fail because consumers bought the Natural Label Oils for many reasons unrelated to whether the products were "natural." According to the  Survey, respondents' most common considerations in deciding whether to purchase cooking oil were price and brand awareness.  Only 1.6% of respondents indicated that whether an oil was "natural" factored into their purchasing decision. Under the New York General Business Law, the plaintiff must demonstrate that she "sustained injury as a result" of defendant's action, and the plaintiff must show that she suffered a loss "because of' the defendant's "deceptive act." Rodriguez v. It 's Just Lunch, Int 'l, 300 F.R.D. 125, 147 (S.D.N.Y. 2014). Defendant argued this element highlighted individual issues among the class members.

The court noted that class action law recognizes an "implied requirement of ascertainability." In re Initial Pub. Offering Sec. Litig., 471 F.3d 24, 30 (2d Cir. 2006). A class is ascertainable if it is "readily identifiable, such that the court can determine who is in the class and, thus, bound by the ruling." Charrons v. Pinnacle Group NY LLC, 269 F.R.D. 221, 229 (S.D.N.Y.2010). The class must be "defined by objective criteria that are administratively feasible," and identifying class members should not "require a mini-hearing on the merits of each case." Id.

Here, it was undisputed that many potential class members will not have retained records of their
cooking oil purchases.  Plaintiffs argued that some class members could be identified by retailer records.  But, the court concluded, this fell well short of establishing ascertainability. While the criteria may be objective, Plaintiff had not shown that it was "administratively feasible." See Charrons, 269 F.R.D. at 229. The mere assertion that "records exist to identify many class members" does not suffice. Defendant sold to retailers and distributors, not to consumers, and therefore has no records regarding the ultimate purchasers of the Natural Label Oils. Plaintiffs' information did not relate exclusively to New York retailers, and there was no evidence concerning what percentage of sales this data represents, nor whether such data would identify more than a small percentage of class members.

As many plaintiffs do, the argument was made that self-identification was also a feasible method for determining class membership; however, there was no proof of  how such self-identification would be authenticated. Most courts reject such an approach, especially when there were a variety of related products only some of which fall within the class definition. Often, putative class members are unlikely to remember accurately every purchase during the class period, and soliciting  declarations from putative class members regarding their history of purchases would invite them to speculate, or worse. Here, defendant was selling nine different brands of cooking oil, only four of which ever bore the challenged label. Permitting potential class members to self-identify would require them to specifically recall each variety of Crisco cooking oil they purchased during the class period. Adding to the confusion, the "All Natural" label appeared on the four brands at different times, and the proposed class period was defined differently for the Vegetable and Corn Oils  than the Canola and Natural Blend Oils.  Based on the class definition, therefore, an individual who purchased Crisco Corn Oil in 2009 would be a member of the class, but one who purchased Canola Oil that same year would not. "Who could possibly recall that level of detail six years (or more) later?"  Indeed, the named Plaintiff herself could not recall the number of bottles of Crisco cooking oil  she had purchased during the class period.

The court turned next to commonality and predominance. Commonality requires plaintiffs' claims to "depend upon a common contention" that is  "capable of class-wide resolution-which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke." Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011). The determining factor is not whether common questions exist, but rather "the capacity of a class-wide proceeding to generate common answers apt to drive the resolution of the litigation." !d. The predominance requirement "is a more demanding criterion than the commonality inquiry under Rule 23(a)." Moore v. PaineWebber, Inc. , 306 F.3d 1247, 1252 (2d Cir. 2002). Class-wide issues predominate if "resolution of some of the legal or factual questions ... can be achieved through generalized proof," and are "more substantial than the issues subject only to individualized proof." Id.  Although individualized damages determinations alone traditionally did not preclude certification under Rule 23(b )(3), the fact that "damages may have to be ascertained on an individual basis" is a factor that courts "must consider in deciding whether issues susceptible to generalized proof outweigh individual issues." Roach v. T.L. Cannon Corp., 778 F.3d 401, 408-09 (2d Cir. 2015). A plaintiffs damages model "must be consistent with its liability case," and  must "measure only those damages attributable to that theory." Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1433 (2013). 

Here, plaintiff asserts that the injury to Plaintiff and class members was subject to common
proof' because the inclusion of the "All Natural" label had the effect of increasing the price of
the cooking oils for everyone.  Yet, Plaintiff offered no evidence that a price premium actually existed for cooking oils labeled "All Natural," nor had she proposed a reliable method for determining the existence or amount of any such price premium.  This plaintiffs proposed a survey to identify the allege price premium.  But such a methodology is not "consistent with [Plaintiffs] liability case," see Comcast Corp., 133 S. Ct. at 1433, because it made no attempt to calculate the amount that consumers actually overpaid due to the "All Natural" label. Rather than analyzing actual pricing and sale data for the Natural Label Oils, plaintiffs' expert merely proposed to ask some unspecified subsection of Crisco customers what they would pay for a hypothetical Crisco product. Moreover, this analysis further compounded the problems with the ascertainability of the class, by designating potential class members- many of whom may be unidentifiable--as the very individuals who will determine the amount of damages to which they are entitled.

Accordingly, Plaintiffs motion for class certification under Rule 23(b)(3) was denied.


Iowa and New Hampshire Won't Decide Top Legal Blog

 The Expert Institute is ranking the best legal blogs - as chosen by the folks that count: readers. To nominate a favorite blog, readers click this link and vote electronically.


Might I suggest for your consideration our friends at the Drug And Device Law Blog;  as well as my colleagues at Lowering the Bar; the Missouri and Kansas Class Action Blog,


Of course, your humble blogger would not mind a few mentions of MassTortDefense as well if readers were so inclined.

Polls are open until 8/21 I am told.






Drug Class Action Rejected Again

Class certification was denied -- again -- in litigation brought by plaintiffs who allege a drug maker misstated the likelihood of withdrawal symptoms in use of a prescription medication.  See Saavedra v. Eli Lilly & Co., No. 12-09366 (C.D. Calif., 7/21/15).

Plaintiffs originally moved to certify four classes under the state consumer fraud acts of Missouri, New York, Massachusetts and California. The court rejected those proposed classes, noting plaintiffs' "unusual" theory of injury and damages. Plaintiffs did not allege they suffered the alleged withdrawal effects, or that they were injured by being overcharged.  They asserted instead that they were harmed because they received a product that had less value than the class expected it to have.  They got a product with less utility, defined as the benefit consumers believe they will get by using the product.  This flawed model looked only to the demand side of the market because it focused on a refund tied to consumers out of pocket costs; yet, the prescription drug market is quintessentially inefficient and the relationship between price and value is "severed."  In turn, causation and injury could not be shown on a class-wide basis, and common issues did not predominate. 

Plaintiffs tried again, with a proposal to certify New York and Massachusetts classes. This effort, too, raised serious issue of predominance. Plaintiffs claimed to seek only the minimum statutory damages provided under the laws of the two states,  Thus, they sought to avoid the problems of their original damages model.  But plaintiffs still had to show that each class member was injured as a result of defendant's alleged misleading act -- that the act caused the loss.  Plaintiffs could only show that harm by alleging the acts caused them to pay the wrong price, too much, a price premium, for the drug;  this is either a variant on the rejected fraud-on-the-market theory or a theory that calls for a subjective individual inquiry into what each class member got and paid for.  Because the prescription drug market is not efficient (for example, it is complicated by the role of insurance and co-payments), plaintiffs cannot rely on price to show injury in this way.  Pricing affected different class members to varying degrees because of different health insurance and the different terms of benefits that can accompany it. Even if, under the new theory, plaintiffs did not need to quantify the subjective injury each felt to quantify damages, that didn't change the fact that plaintiffs would need to show that same thing to establish causation and fact of injury.  This could not be done on a class-wide basis.

Here, the class period spanned a decade and included class members who paid different prices for the drug and had different insurance. Different class members would have been affected to different degrees.  And use of a defendant's internal marketing or pricing documents wouldn't bridge the gap: the suggestion that a lower level of withdrawal symptoms might lead some consumers to pay more for a drug does not prove that a premium was actually charged, that the price charged was in excess of the drug's true value, or that prices negotiated with third-party payers were directly and fully passed on to the class.

So, again, the attempted showing of predominance failed.


Exclusion of Causation Expert Upheld

The Seventh Circuit recently held that a lower court was correct to preclude a proposed causation expert from testifying for the plaintiffs in a suit relating to a plaintiff''s alleged exposure to chlorine gas at an Indiana amusement park.  See  Kent Higgins, et al. v. Koch Development Corp., No. 14-2207 (7th Cir. 7/20/15).

At the park, plaintiff allegedly inhaled an unspecified amount of chemical fumes that lingered in the air near malfunctioning equipment.  Complaining of chest tightness, burning eyes, shortness of breath, and nausea, Higgins visited the emergency room later that day, where he was diagnosed with “mild chemical exposure” and discharged with instructions to follow up with his primary
care physician. More than a year later he was diagnosed with reactive airways dysfunction syndrome (“RADS”) and chronic asthma. 

This treater, Dr. Haacke, was offered as an expert, and when challenged, plaintiff's argument appeared to be that she was qualified merely because she was a board certified pulmonologist. Although a doctor may have “experience diagnosing and treating asthma … that does not make him qualified to ‘assess its genesis.’” Cunningham v. Masterwear, Inc., 2007 WL 1164832, at *10 (S.D. Ind. Apr. 19, 2007). Plaintiff offered no evidence that Dr. Haacke had ever treated another
patient for chlorine gas exposure or had any training in toxicology. Nor could plaintiff establish that Dr. Haacke employed a reliable methodology in forming her causation opinion (even assuming she was qualified to do so). The expert essentially diagnosed Higgins after listening to his own description of his symptoms and the events at the park—some fourteen months after the fact—and after looking at the results (though not the underlying data) of the pulmonary function study conducted by another doctor the year before.

The record was silent on whether Dr. Haacke considered other possible causes of Higgins’s
ailments and, if so, how and why she ruled them out. That is problematic, because plaintiff argued the doctor was employing “differential diagnosis."  A "differential diagnosis” actually refers to a method of diagnosing an ailment, not determining its cause. See Myers, 629 F.3d at 644. Some courts have recognized a form of  "differential etiology,” as a causation‚Äźdetermining methodology. Even then, to be validly conducted, an expert must systematically “rule in” and “rule out” potential causes in arriving at her ultimate conclusion. There was no showing that this was done.

The experts Ļ work is admissible only to the extent it is reasoned, uses the methods of the discipline, and is founded on data.  Lang v. Kohl’s Food Stores, Inc., 217 F.3d 919, 924 (7th Cir. 2000). Accordingly, it was within the district court’s discretion to deem Dr. Haacke unqualified to
proffer this expert testimony.




Proposed Class Action Stayed Pending FDA Guidance

A California recently indicated he would stay a putative class action raising allegations  about labeling of “evaporated cane juice” pending a decision from the U.S. Food and Drug Administration on sweetener labeling.  See Jennifer Shaouli v. Reed’s Inc., No.BC534738 (Sup. Ct. Los Angeles, Cal.).  The 2014 complaint can be found at 2014 WL 533701, and alleges various juice products, including defendant's  Hibiscus Ginger Grapefruit, Cranberry Ginger, Lemon Ginger Raspberry, Pomegranate Ginger, Coconut Water Lime, Passion Mango Ginger, and Cabernet Grape, were labeled misleadingly because they allegedly list “organic evaporated cane juice” as an ingredient. 

The Food and Drug Administration reopened the comment period on its draft guidance for industry on declaring "evaporated cane juice" as an ingredient on food labels. The agency originally published the draft guidance in October of 2009 and accepted comments through early December of that year. FDA reopened the comment period to obtain additional data and information to better understand the basic nature and characterizing properties of the ingredient, the methods of producing it, and the differences between this ingredient and other sweeteners.

The FDA is still mulling the new comments. And the court wisely decided it made little sense to proceed with the proposed class action until hearing from the FDA. Among the issues FDA is considering is whether the name “evaporated cane juice” adequately conveys the basic nature of the food and its characterizing properties or ingredients. 

Local Fracking Ban Struck Down

We typically focus on state court class actions when they reach the appellate level, but wanted to note an interesting decision at the trial court level.  An Ohio court has rejected a proposed class action by a group seeking to ban hydraulic fracturing in their community.  See Mothers Against Drilling in Our Neighborhood v. Ohio, No. CV-14-836899 (Ohio Ct. Com. Pl., 7/1/15).

Last December, community activists filed the class action against the state, the governor, and some fracking defendants, with the far-reaching argument that the portion of state law (Ohio Rev. Code § 1509) that gives the state Department of Natural Resources exclusive authority to permit, locate, space and regulate oil and gas wells, somehow violates plaintiffs' state constitutional right to local self-governance.  Plaintiffs' community had voted in favor of a city ordinance that bans fracking within the boundaries of their city.

The court granted defendants' motion for summary judgment, relying in large measure on a recent Ohio Supreme Court ruling in State v. Beck Energy Corp., Ohio, No. 2013-465, 2015 WL 687475 (Ohio, 2/17/15).  The ban on fracking was an invalid exercise of the city's home rule authority as it was preempted by Ohio Rev.C. 1509 as a matter of law.  In Beck, the state supreme court had noted that Chapter 1509 regulates oil and gas wells and production operations in Ohio. While it preserves certain limited powers for local governments, it gives the state government “sole and exclusive authority” to regulate the permitting, location, and spacing of oil and gas wells and production operations within the state.The supreme court held that the Home Rule Amendment to the Ohio Constitution did not grant to a city the power to enforce its own permitting scheme atop the state system. 

More background on this local regulation debate can be found at Knight & Gullman, The Power Of State Interest: Preemption Of Local Fracking Ordinances In Home-Rule Cities, 28 Tul. Envtl. L.J. 297 (Summer, 2015).

House Committee Recommends Class Action Reform

The House Judiciary Committee recently approved a proposed bill that would modify class certification standards under Fed. R. Civ. P. 23.  H.R. 1927, the 2015 Fairness in Class Action Litigation Act, is another attempt to force courts to require that the party seeking to maintain a class action affirmatively demonstrate through admissible evidentiary proof that each proposed class member suffered an injury of the same type and extent as the injury of the named class representatives.  The bill defines "injury" as the alleged impact of the defendant's actions on the plaintiff's body or property.

The committee voted 15-10 to approve an amendment, introduced by Committee Chairman Robert W. Goodlatte (R-Va.), to exempt plaintiffs seeking only declaratory or injunctive relief, as a means to carve out most civil rights plaintiffs, from the bill's proposed requirement. The amended bill would apply only to proposed classes seeking monetary relief for personal injury or economic loss.  The Committee then voted 15-10 to send H.R. 1927 to the full House for consideration.

This type of bill is generally is aimed at the so-called no injury class actions in which not all of the class members are injured, sometimes even most of the class is not injured -- for example purchasers of a consumer product with an alleged design defect that has not manifested itself in most of the units.  Such classes create issues for defendants, plaintiffs, and the courts. The bill's sponsors argue that when classes are certified that include members who do not have the same type and scope of injury as the class representatives, those members siphon off limited compensatory resources. Classes including uninjured parties can also artificially inflate the size of the class to command a larger settlement value.  


Court of Appeals Affirms Rejection of Unascertainable Class

The 11th Circuit earlier this month upheld a district court's rejection of a proposed class action, relying on the ascertainability doctrine. See Karhu v. Vital Pharm., Inc., No. 14-11648, 2015 WL 3560722 (11th Cir. June 9, 2015).

Defendant marketed a dietary supplement called VPX Meltdown Fat Incinerator (“Meltdown”), which it allegedly advertised for fat loss. Plaintiffs brought a proposed class-action suit, alleging that it does not aid fat loss.  Plaintiffs moved to certify a class of nationwide Meltdown purchasers, as well as a subclass of New York purchasers.  The district court denied Karhu's motion, holding that the proposed classes satisfied neither Rule 23's implicit ascertainability requirement, nor the requirements listed in either Rule 23(b)(2) or (3). Plaintiffs appealed, and the court of appeals affirmed without reaching the district court's Rule 23(b)(3) analysis.

Rule 23 implicitly requires that the proposed class is adequately defined and clearly ascertainable. A class is not ascertainable unless the class definition contains objective criteria that allow for class members to be identified in an administratively feasible way. Bussey v. Macon Cnty. Greyhound Park, Inc., 562 F. App'x. 782, 787 (11th Cir.2014). Identifying class members is administratively feasible when it is a “manageable process that does not require much, if any, individual inquiry.” Id. 

Invoking these rules, the district court denied Karhu's motion for class certification, holding that Karhu had failed to establish that his proposed classes were ascertainable. Specifically plaintiffs had failed to propose a realistic method of identifying the individuals who purchased Meltdown. The product was sold primarily to “distributors and retailers,” such that defendant's records could not be used to determine the identities of most class members.The product's low cost meant most class members would not retain their proof of purchase.  The district court also rejected an affidavit-based method. Without verification (discovery), the defendant would be deprived of its due process rights to challenge the claims of each putative class member. On the other hand, allowing defendant to contest each affidavit would require a series of mini-trials to determine class membership, which would not be administratively feasible. 

Plaintiffs appealed.  And as noted the 11th Circuit affirmed.  A plaintiff seeking certification bears the burden of establishing the requirements of Rule 23, including ascertainability.  In order to establish ascertainability, the plaintiff must propose an administratively feasible method by which class members can be identified. See Stalley v. ADS Alliance Data Syst., Inc., 296 F.R.D. 670, 679–80 (M.D.Fla.2013); Hill v. T–Mobile, USA, Inc., No. 2:09–cv–1827–VEM, 2011 WL 10958888, at *10–11 (N.D.Ala. May 16, 2011); see also Carrera v. Bayer Corp., 727 F.3d 300, 306–07 (3d Cir.2013) (“A plaintiff may not merely propose a method of ascertaining a class without any evidentiary support that the method will be successful.”).  A plaintiff cannot establish ascertainability simply by asserting that class members can be identified using the defendant's records; the plaintiff must also establish that the records are in fact useful for identification purposes, and that identification will be administratively feasible. Similarly, a plaintiff cannot satisfy the ascertainability requirement by proposing that class members self-identify (such as through affidavits) without first establishing that self-identification is administratively feasible and not otherwise problematic. See Fisher v. Ciba Specialty Chems. Corp., 238 F.R .D. 273, 301–02 (S.D.Ala.2006); Perez v. Metabolife Int'l, Inc., 218 F.R.D. 262, 269 (S.D.Fla.2003) (holding ascertainability not established when “the only evidence likely to be offered in many instances will be the putative class member's uncorroborated claim that he or she used the product”).

The potential problems with self-identification-based ascertainment are intertwined. On the one hand, allowing class members to self-identify without affording defendants the opportunity to challenge class membership provides inadequate procedural protection to defendants and implicates their due process rights. Perez, 218 F.R.D. at 269; see also Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 594 (3d Cir.2012).  On the other hand, protecting defendants' due process rights by allowing them to challenge each claimant's class membership can be administratively infeasible, because it requires a series of mini-trials just to evaluate the threshold issue of which persons are class members.  

In light of these standards, the district court's ascertainability holding was not an abuse of discretion. Karhu's proposal to identify class members using  “sales data” was incomplete, insofar as Karhu did not explain how the data would aid class-member identification. Nor was any other potential identification procedure obviously workable: the sales data identified mostly third-party retailers, not putative class members. The district court likewise acted within its discretion when it rejected identification via affidavit. Plaintiffs had not established how the potential problems with such a method would be avoided.

Worth noting for our readers is the court of appeals'  explanation of how ascertainability differs from manageability. Ascertainability addresses whether class members can be identified at all, at least in any administratively feasible (ok, manageable) way. But the manageability concern at the heart of the ascertainability requirement is prior to, and hence more fundamental than, the manageability concern addressed in Rule 23b3.