Not your grandma, not some dude you saw in the newspaper. (3) All posts must have a 'TL DR summary' at the end. (2) All posts must have at least 750 characters in the body. Use proper formatting: (1) All titles must start with TIFU. Share your stories and laugh along with the internet. We all have those moments where we do something ridiculously stupid.

will be an important one.A community for the dumbass in all of us. Dole Packaged Foods, LLC.) The Ninth Circuit’s decision in Jones v. Skinnygirl Cocktails, LLC., all following the Third Circuit’s decision in Carrera v. ZonePerfect Nutrition Co., In re Clorox Consumer Litigation, and Langendorf v. This argument, however, continues to be decided differently depending on the judge. Mirabella provides another example of the successful use of the “lack of ascertainability” argument in consumer class actions involving small and inexpensive consumer products. Vital Pharmaceuticals, which Judge Zloch promptly denied. Plaintiffs immediately filed a motion for reconsideration of the Court’s order, or in the alternative, a motion to stay pending the 11th Circuit’s ruling in Karhu v. The Court also said that the fact that Redline conducts most of its sales through distributors, who, subsequently, sell to retailers, increases the likelihood that the class is unascertainable because Redline does not have documentation to determine the identities of the ultimate purchasers. ( currently before the Ninth Circuit), the Court said that the “subjective memory problem” is present when “a proposed class of individuals is unascertainable because there is no good way to identify such individuals and the Court cannot expect members of the class to recall the cumulative total of the product which they have consumed.” The Court noted that even the plaintiffs were unable to reliably recall or objectively prove how many bottles of the drink they consumed. The judge said that the significant similarities between the drink at issue and the other Redline Energy Drink raised “concerns about the objective reliability of class member self-declaration, such as the ‘subjective memory problem’.” Relying on Jones v.

Judge Zloch acknowledged that this factor was not dispositive, but said that the “Court’s conclusion is further supported by the existence of a variety of Redline® products, including Redline® Energy Drink RTD, the existence of which obfuscates the ability to objectively verify membership in the class.”

The Court concluded that because the drink sold for less than $3, purchasers were therefore unlikely to retain their receipts or other records of such purchases. “The Court finds that the Proposed Class is not clearly ascertainable since the class may not be ascertained on the basis of objective criteria.” Zloch said the plaintiffs’ proposed method of establishing membership in the class through a nationwide notice program and a third-party administrator was inadequate because purchasers were unlikely to hold on to their receipts or remember how many bottles of the supplement they had purchased. The plaintiffs proposed an extensive notice plan (using major media outlets and targeted notices posted at the retailers who sold the drink) coupled with an “experienced third-party class administrator” to weed out false claims, claiming that “ny purported “administrative difficulties of establishing members of the class and providing appropriate notice do not negate the overall superiority of the instant class action over the alternative of piecemeal litigation.”ĭenying plaintiffs’ motion to certify, U.S. The Court noted that ascertainability was a “threshold” requirement, such that the plaintiff must be able to demonstrate that the proposed class members “can be ascertained by objective criteria” that is “administratively feasible” with few “if any, individual inquiries.” concealed the dangerous side effects of its Redline Xtreme energy drink, and attempted to certify a class composed of all purchasers of the approximately $3 drink since 2008. 0:12-cv-62086, that Vital Pharmaceuticals Inc.

By on MaPosted in Consumer class actions, Recent consumer products case lawĪ Florida federal judge refused to certify a nationwide class of purchasers of Redline Extreme Energy Drink stating that the class lacked ascertainability (a topic we have previously addressed on this blog).

Redline energy drink extreme