Skinnygirl Margarita Class Rejected Again: Proof Fell Below Third Circuit's High Bar For Ascertainability

A New Jersey federal court ruled that plaintiffs once again failed to demonstrate the ascertainability of a class of purchasers seeking to challenge "all natural" claims by the makers of Skinnygirl Margarita. Stewart v. Beam Global Spirits & Wine, Inc., No. 11-5149 (D.N.J. June 8, 2015). The court held that the Third Circuit's high bar for demonstrating ascertainability was not lowered by its most recent decision on the issue, Byrd v. Aaron's Inc., 784 F.3d 154 (3d Cir. 2015). The Stewart decision is notable for its analysis and rejection of plaintiffs' effort to rely on a class action administrator's declaration to establish a "reliable and administratively feasible" methodology for ascertaining class membership.

Ascertainability Requirements

The court noted that there are two requirements for ascertainability: (1) the class must be defined with reference to objective criteria, and (2) there must be a reliable and feasible mechanism for determining whether putative class members fall within the class definition. The court concluded that, because putative class members were simply defined as purchasers of Skinnygirl Margaritas between specified dates, the first requirement was satisfied; the second, however, was not.

The court reiterated the Third Circuit's guiding principle, first articulated in Carrera v. Bayer Corp., 727 F.3d 300, 306 (3d Cir. 2013), that ascertainability may not be based on the purported class members' "say so;" a methodology that depends primarily on class members' affidavits does not give defendants a "suitable and fair" basis for challenging class membership. In Stewart, the defendants did not sell directly to consumers and did not have records that would permit identification of class members. Plaintiffs attempted to satisfy the requirement of a reliable and feasible methodology for identifying class members by submitting the declaration of Steven Weisbrot, the executive vice president of Angeion Group, LLC, a class action administration firm, detailing the methodology proposed to be applied. The court addressed the proposed methodology in detail, finding it lacking in numerous respects.

Analysis of Proposed Methodology

The Weisbrot declaration proposed a three-tiered methodology. In the first level of review, claims submitted with a receipt would be accepted and subject to further review only at the third level. Class members who had not retained receipts would be subject to a second level of review, involving...