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ARTICLE · 28 FEBRUARY 2014

Ascertainability And Administrative Feasibility - Sethavanish v. ZonePerfect Nutrition Co.

McGuireWoods LLP
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More courts are declining to certify class actions where they will not be able to ascertain class membership based on the evidence before them.

United StatesLitigation, Mediation & Arbitration
Andrew J. Trask
Andrew J. Trask

This week's case continues a trend I've written about before: more courts are declining to certify class actions where they will not be able to ascertain class membership based on the evidence before them.

In Sethavanish v. ZonePerfect Nutrition Co., No. 12-2907-SC, 2014 U.S. Dist. LEXIS 18600 (N.D. Cal. Feb. 13, 2014), the plaintiff sued ZonePerfect alleging that it had fraudulently marketed its nutrition bars as "all natural" even though they contained a number of artificial ingredients.

When the plaintiff moved to certify a class, ZonePerfect pointed out one very large problem with her proposal: it did not sell its nutrition bars retail. From a merits standpoint, that was not an insurmountable hurdle. But it meant the plaintiff would have a very difficult time identifying other members of the class.

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