Date: Jan 06, 2015
United States Judge, Manish S. Shah, refused to certify a putative class in a labeling suit finding that the class members could not be easily identified, that the class representative was inadequate; and that common issues to class members did not predominate over individual members. The case is Langendorf v. Skinnygirl Cocktails, LLC.
This matter follows the United States Judicial Panel on Multidistrict Litigation 2011 decision declining this and similar cases pending against the makers of Skinnygirl Cocktails.
The Facts of the Case
Amy Langendorf brought a class action in the United States District Court for the Northern District of Illinois, Eastern Division, against the makers of Skinnygirl Cocktails including reality-TV star, Bethenny Frankel under the Illinois Consumer Fraud and Deceptive Practices Act, Illinois statutes concerning express and implied warranties, and breach of contract, unjust enrichment, and promissory estoppel theories.
Ms. Langendorf alleged that the Skinnygirl Margarita - a low calorie pre-made alcoholic drink - contained the preservative sodium benzoate and therefore the "All Natural" label was false and misleading.
Ms. Langendorf attempted to certify a class on behalf of all consumers who purchased the Skinnygirl Margarita and suffered damages as a result of its alleged false and misleading label. Ms. Langendorf claimed that she met all of the requirements to certify the class. Skinnygirl Cocktails opposed the certification claiming that Ms. Langendorf neither demonstrated that the class is ascertainable nor met any of the requirements under the Federal Rules.
What the Court Said
With respect to determining whether the class is ascertainable, the Court looked to the recent Carrera v. Bayer Corp. decision. While the court noted that Carrera "could be read to impose too high a burden on plaintiffs in consumer class actions," Ms. Langendorf did not make even a minimal showing that the method of identifying class members would be successful. The court found that while Ms. Langedorf provided objective criteria to identify members - purchase of the Skinnygirl Margarita after March 1, 2009 and lack of association with the defendants - she did not provide the court with any method concerning how the court could determine who the purchasers were. This alone was enough to deny certification, but the Court discussed additional issues with the proposed certification: predominance and adequacy of representation.
The Court found that "predominance" was lacking because no evidence was offered concerning which members of the proposed class did not know about the preservative and would not have purchased the product had they known.
The Court also found Ms. Langendorf's undisputed close and personal relationship with the lead counsel for the Plaintiff troubling. Ms. Langendorf's reply briefs ignored this issue entirely and failed to meet the burden of proving that the putative class members would be adequately represented. Accordingly, the Court found that the adequacy of representation requirement was not satisfied.
This is another decision that not only highlights the ways in which class certification can be defeated, specifically by challenging whether the class can be ascertained, but it also shows one court's view of the recent Carrerra decision. While the Court found guidance in the Carrera decision, it also noted that the standard adopted by the Third Circuit in Carrerra may be too high. We will continue to monitor how Carrera is applied by other courts.