ben-and-jerrys-berry-voluntaryCross-posted by at WLF’s contributor site

In September 2012, we commented on Northern District of California Judge Phyllis Hamilton’s rejection of a settlement of the food labeling class action Astiana v. Ben & Jerry’s Homemade (Update: Judge Rejects Settlement in Ben & Jerry’s “Natural” Class Action). Last  January, she requested briefs on class certification. On Tuesday, January 7, Judge Hamilton rejected class certification.

Ms. Astiana, a Food Court frequent flier, has had a rough go of it lately in her role as a named class action plaintiff. We noted here six months ago that Southern District of California Judge Marilyn Huff denied certification of Astiana’s lawsuit against Kashi.

In the suit against Ben & Jerry’s Ms. Astiana argued the company’s labeling of certain ice cream pints as “all natural” misled her into paying a premium for the product and “disrupted my vibe” (her words, not ours). The ice cream, she alleges, is not natural due to the presence of synthetic alkalized cocoa. Judge Hamilton rejected class certification on two grounds.

Ascertainability. Though not a formal part of Federal Rule of Civil Procedure 23, which governs federal class actions, courts have found that the class must be ascertainable—that is, it “must be sufficiently definite so that it is administratively feasible to determine whether a particular person is a class member.” The U.S. Court of Appeals for the Third Circuit enraged the plaintiffs’ bar last summer with two rulings on ascertainability, Hayes v. Wal-Mart Stores and Carrera v. Bayer CorpIn those cases, the defendants, both consumer product makers, argued that because the class members offered no reliable and administratively feasible way to prove they had purchased the targeted product (such as sales receipts), the class was not ascertainable. The court agreed, ruling that reliance upon a consumer’s “say so” that they purchased the product did not permit defendants an opportunity to challenge the evidence used to prove class membership.