United States District Court, N.D. Illinois, Eastern Division
AMY LANGENDORF, on behalf of herself and all others similarly situated, Plaintiff,
SKINNYGIRL COCKTAILS, LLC, BETHENNY FRANKEL, SGC GLOBAL, LLC, and BEAM GLOBAL SPIRITS & WINE, INC., Defendants.
MEMORANDUM OPINION AND ORDER
MANISH S. SHAH, District Judge.
Amy Langendorf alleges that Skinnygirl Margarita, a pre-mixed alcoholic beverage, contains the non-natural preservative sodium benzoate, and thus the text "all natural" on the label is false and misleading. Langendorf sued the makers and promoters of the product (1) under the Illinois Consumer Fraud and Deceptive Business Practices Act; (2) under Illinois statutes concerning express and implied warranties; and (3) under breach-of-contract, unjust enrichment, and promissory estoppel theories. Langendorf seeks to represent an Illinois-wide class of purchasers of the product, and now moves for class certification. For the reasons discussed below, that motion is denied.
I. Legal Standards
A plaintiff seeking to certify a class under Rule 23 of the Federal Rules of Civil Procedure must show that her proposed class is "sufficiently definite that its members are ascertainable." Jamie S. v. Milwaukee Pub. Schs., 668 F.3d 481, 493 (7th Cir. 2012). Once that hurdle is cleared, the plaintiff must satisfy the four requirements of Rule 23(a)-commonly referred to as numerosity, commonality, typicality, and adequacy of representation. Harper v. Sheriff of Cook County, 581 F.3d 511, 513 (7th Cir. 2009). The plaintiff must also satisfy the requirements of at least one subsection of Rule 23(b). Id. Langendorf seeks to certify a class under Rule 23(b)(3), so must show that issues common to the class members predominate over questions affecting only individual members, and that a class action is superior to other available adjudication methods. Fed.R.Civ.P. 23(b)(3); Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012).
Langendorf must "affirmatively demonstrate" compliance with Rule 23 through "evidentiary proof"-mere allegations are insufficient. Comcast Corp. v. Behrend, 133 S.Ct. 1426, 1432 (2013); Szabo v. Bridgeport Mach., Inc., 249 F.3d 672, 675 (7th Cir. 2001). Compliance with each requirement must be shown by a preponderance of the evidence. Messner, 669 F.3d at 811. I can only certify a class if I am "satisfied, after a rigorous analysis, " that compliance with Rule 23 has been shown, even if the analysis entails some overlap with the merits. Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2551 (2011); see also Am. Honda Motor Co., Inc. v. Allen, 600 F.3d 813, 815 (7th Cir. 2010).
Langendorf seeks to represent the following class:
Any and all persons who purchased "Skinnygirl" Margarita spirits in Illinois from March 1, 2009 until the date notice is disseminated. Excluded from the Class are Defendants' officers, directors, agents and employees, those who purchased "Skinnygirl" Margaritas for the purpose of resale and any judge presiding over this case, including any member of his/her family.
 at 2. Defendants oppose certification, arguing that the proposed class is not ascertainable, and that Langendorf has satisfied none of the Rule 23 requirements.
A. Whether the Class is Ascertainable
Langendorf must show that the proposed class is sufficiently definite-its members must be ascertainable. Jamie S., 668 F.3d at 493; Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir. 2006). A proposed class is not ascertainable where "there is no way to know or readily ascertain who is a member of the class." Jamie S., 668 F.3d at 495. The identities of the class members need not be known at this stage, but there must be some objective criteria by which the identities can be determined. Manual for Complex Litigation, Fourth § 21.222. In addition to defining the class by reference to objective criteria, the plaintiff must propose a method for ascertaining class members with some evidentiary support that the method will be successful. Carrera v. Bayer Corp., 727 F.3d 300, 306 (3d Cir. 2013).
Plaintiff has satisfied the objective-criteria requirement. Purchase of Skinnygirl Margarita, after March 1, 2009, and lack of association with defendants or the court provide objective descriptions of prospective class members. But plaintiff has not offered any method by which the court could find out who the purchasers were. Plaintiff says class membership can be verified by the dates of purchase, the locations of retail establishments, the frequency of purchases, the quantity of purchases, and the cost of purchase,  at 22, but does not offer any showing that this can be done. For example, plaintiff provides no evidence that any records exist that show who purchased the offending product, when, or where. Defendants argue that because they never sold the product directly to consumers, there is no way (without individual mini-trials) to specifically identify the class members.  at 12-13. The burden is on the plaintiff to demonstrate that the class can be identified, and plaintiff has failed to meet this burden.
The Third Circuit's decision in Carrera could be read to impose too high a burden on plaintiffs in consumer class actions. See Carrera v. Bayer Corp., 2014 WL 3887938 (3d Cir. 2014) (Ambro, J., dissenting from denial of rehearing en banc). I am not bound by Carrera, but I am persuaded that in order for a class to be ascertainable, there must be a showing by plaintiff that some method exists to identify the members. Here there has been none; even if Carrera set the bar too high, plaintiff has not made a minimal showing. Because plaintiff has failed to demonstrate how one would go about using the objective criteria to ascertain the class members, on this record the class cannot be ascertained. For the sake of completeness, I address the other requirements for class certification.
Rule 23(a)(1) requires that a class be so numerous that joinder of all its members is impracticable. Szabo, 249 F.3d at 676. Defendants argue that numerosity is not met because the proposed class includes people whose claims will fail on the merits.  at 7-8. As in Parko v. Shell Oil Co., 739 F.3d 1083, 1084-85 (7th Cir. 2014), the defendants are putting the cart before the horse. "How many (if any) of the class members have a valid claim is the issue to be determined after the class is certified." Id. Langendorf contends that the proposed class includes thousands of members. ...