California Federal Court Follows Third Circuit in Denying Class Certification Based on Lack of Receipts in Kitty Litter Case

Judge Conti of the Northern District of California recently issued a decision denying class certification in a consumer class action against The Clorox Company involving claims arising from the marketing and advertising of Fresh Step cat litter (In Re Clorox Consumer Litigation, Case No. 12-00280-SC (N.D. Cal. July 28, 2014) (ECF No. 129) (“Order”)). The court denied class certification on the ground that the class was not sufficiently ascertainable because there was “no administratively feasible method of determining membership for the vast majority of potential members of Plaintiffs’ proposed sub-classes.” (Order at 8.)

The court followed the Third Circuit’s decision in Carrera v. Bayer Corp., 727 F.3d 300, 306 (3d Cir. 2013), in requiring that plaintiffs “‘show, by a preponderance of the evidence, that the class is currently and readily ascertainable based on objective criteria.’” (Order at 5.) Judge Conti further held that in consumer class actions where the plaintiffs intend to rely on retailer records, the plaintiffs must produce “sufficient evidence to show that such records can be used to identify class members” and that consumer affidavits alone are insufficient to identify the class. (Id.) In applying this standard, the court found that the plaintiffs failed to meet their burden of showing the class was ascertainable because, among other reasons, the plaintiffs did not keep their receipts and failed to show that the retailers that sold Fresh Step had records sufficient to identify the putative class. (Id.)

The court also denied class certification for the independent reason that common issues did not predominate over individual issues under the laws of any of the five states (California, New York, New Jersey, Texas, and Florida) of the proposed sub-classes. (Order at 15-25.) In particular, with respect to the California sub-class, Judge Conti rejected the plaintiffs’ argument that the California Supreme Court’s decision in In re Tobacco II Cases, 46 Cal. 4th 298 (2009), stands for the proposition that “any materially misleading product advertisement is automatically presumed under California law to reach and influence all of the product’s customers.” (Id. at 16-17.) Judge Conti concluded that, because the proposed California sub-class was not limited to those who were exposed to the allegedly false statement, and because the plaintiffs did not establish that the allegedly false statement was on the label of a significant portion of Fresh Step products or that consumers actually saw such statement, common issues did not predominate over individual issues because an individualized case would have to be made for each putative class member relating to reliance. (Id. at 18.)