Class ascertainability exists without purchase records

Thurston v. Bear Naked, Inc., No. 3:11–CV–02890, 2013 WL 5664985 (S.D. Cal. July 30, 2013)

The court certified a California class of purchasers of Bear Naked products marked as 100% natural that contained hexane-processed soy.  Of note, the court rejected Bear Naked’s argument that the class wasn’t ascertainable because nobody had purchase records.  The class definition wasn’t vague or confusing: it was purchasers of the products so labeled, and because the alleged misrepresentation was on the labels there was no issue of sweeping in people not exposed to the misrepresentation.  There’s no requirement that class members’ identity be known at the time of certification, and indeed that would destroy the class action mechanism.  As long as the definition is sufficiently definite to identify members, administrative challenges don’t defeat class certification.  Relatedly, the court rejected Bear Naked’s argument that the definition had to ensure that all class members had standing, and that some purchasers would have been unaffected by the misrepresentation and thus suffered no injury.  Standing of the named plaintiff was enough; causation on a classwide basis may be established by materiality.
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