In an opinion today, Judge Rakoff explained the reasons for his granting class certification in December of a case alleging that the defendants sold a product labeled “100% Pure Olive Oil” that, in fact, contained an industrially processed substance called “pomace” made from skins and pits of olives from which the oil had already been extracted.
The defendants claimed the class was not “ascertainable” because it would not be practical to identify the class of olive oil purchasers by any objective criteria. In support, they cited Weiner v. Snapple Beverage Corp., a case which Judge Cote ruled that it would be “unrealistic” to try to discern who bought Snapple drinks allegedly bearing the false label “All Natural” during the class period: “However beloved Snapple may be, there is no evidence to suggest that its consumers treat it like a fine wine and remove and save its labels.”
Judge Rakoff ultimately disagreed with the Judge Cote’s decision in the Snapple case because its rationale would make these type of consumer class actions “impossible”:
Although Snapple is not binding on this Court, it raises concerns. However, the Second Circuit has instructed that “failure to certify an action under Rule 23(b)(3) on the sole ground that it would be unmanageable is disfavored and should be the exception rather than the rule.” In re Visa Check/Mastermoney Antitrust Litig., 280 F.3d 124, 140 (2d Cir. 2001). Against this background, the Court finds that , the end, Snapple goes further than this Court is prepared to go, and, indeed, would render class actions against producers almost impossible to bring. Yet the class action device, at its very core, designed for cases like this where a large number of consumers have been defrauded but no one consumer has suffered an injury sufficiently large as to justify bringing an individual lawsuit. Against this background, the ascertainability difficulties, while formidable, should not be made into a device for defeating the action.