A new case, Hernandez v. Chipotle Mexican Grill, Inc., No. CV 12-5543 DSF JCX, 2013 WL 6332002 (C.D. Cal. Dec. 2, 2013), highlights challenges plaintiffs face in certifying classes where membership in the class is difficult or impossible to ascertain based on the defendant’s records. In Hernandez, the plaintiff sought to certify a class of consumers injured when Chipotle allegedly served “conventionally raised” meat while advertising on its in-store signs and paper menus that the meat was “naturally raised.”

But in this case, the court noted that “the alleged misconduct took place only with regard to varying products at varying locations within limited time frames.”  As such, “a class member needs to know with some certainty—and Chipotle should be allowed some mechanism for confirming or contesting that certainty—that date, location, and particular meat purchased.”  There was also the need to know whether individual class members saw the allegedly misleading advertisement.

These individualized fact questions were held to be critical to determining whether a given person is a legitimate member of the class.  And here, the court found a problem, as records of purchases were apparently not retained.  Absent those records, the court found no reliable mechanism to confirm whether a person was a valid member of the class.  While the use of a claim form was considered, the court rejected that approach, reasoning that few people would have the information needed to accurately complete the form.  Thus, the court found that in response to a claim form, “people will either (1) lie, (2) attempt to fill out the claim form as best they can but be unable to do so accurately, or, most likely, (3) not bother.”  Noting that certifying a class under these circumstances would be “unfair to both legitimate class members and to Chipotle,” the court denied class certification.

Hernandez is an example of the “ascertainability” requirement for Rule 23 certification, recently highlighted in the Third Circuit’s opinion in Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013) affirming the denial of certification of another advertising class action.  In Carrera, the court held that where the defendant’s records are insufficient to identify members of the class, class plaintiffs must demonstrate an administratively feasible way to ascertain class members.

This case highlights the importance of analyzing class membership identification issues early in a case.  If the defendant’s records are insufficient to identify members of the putative class, the ascertainability requirement can pose a serious challenge to class certification.  And as Hernandez (and Carrera) demonstrated, the use of self-reporting claim forms or affidavits may not be a sufficiently reliable substitute to meet the ascertainability requirement.