"Ninth Circuit Uneasy About a Higher Bar for 'Ascertainability'"

Yesterday, the Recorder had an article (subscription) about Monday's oral argument in In re ConAgra Foods, a false advertising case alleging that the defendant mislabeled its Wesson Oil products as "100% Natural."  The district court found the classes ascertainable in a lengthy order about eighteen months ago.  In re ConAgra Foods, Inc., 90 F.Supp.3d 919 (C.D. Cal. 2015).  On appeal, the defendant is urging the Ninth Circuit to adopt the Third Circuit's truncated view of "ascertainability" set forth in in Carrera v. Bayer Corp., 727 F. 3d 300 (3d Cir. 2013).

According to the Recorder article, the panel's comments suggested skepticism of Carrera's heightened approach to ascertainability, which the Seventh Circuit considered and rejected in Mullins v. Direct Digital, LLC, 795 F.3d 654 (7th Cir. 2015).   It will be interesting to see what the Ninth Circuit does, although I would be very surprised if it were to adopt Carrera's reasoning.