Astiana v. Ben & Jerry’s Homemade, No. 10-cv4387 (N.D. Cal.):  The court denied plaintiff’s motion for class certification, finding that plaintiff had failed to establish ascertainability or commonality under Rule 23(a) and predominance under Rule 23(b).  The Astiana case involves ice cream labeled “all natural,” which plaintiff alleged contain “synthetic” alkalized chocolate. In denying class certification, the court explained that plaintiff offered no way to determine which products contained “synthetic” as opposed to natural alkali, and further offered no way to show that other class members shared her concern over “synthetic” alkali.  The court therefore found that plaintiff had not established her claims were typical, in large part because she had not identified an ascertainable class.  The court further held that the plaintiff had failed to satisfy the predominance requirement of Rule 23(b)(3), explaining plaintiff had failed to establish a classwide manner of awarding damages based on her price-inflation theory, which would have required evidence that consumers paid more for products containing “natural” alkalized cocoa. Order.

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Photo of Charles Sipos Charles Sipos

Charles Sipos is a class action litigator with more than two decades of experience focusing on technology, consumer goods, and privacy issues.

He litigates class actions nationwide and has appeared and argued on behalf of defendants in federal courts, including in California, Colorado…

Charles Sipos is a class action litigator with more than two decades of experience focusing on technology, consumer goods, and privacy issues.

He litigates class actions nationwide and has appeared and argued on behalf of defendants in federal courts, including in California, Colorado, the District of Columbia, Florida, Illinois, New Jersey, New York, Massachusetts, Minnesota, Oregon, Washington, and the U.S. Courts of Appeals for the Second, Seventh, Ninth, and Eleventh Circuits. Charles’ litigation successes have included dismissals and summary judgment based on lack of Article III injury, statutory standing under consumer protection laws, federal preemption, primary jurisdiction, failure to allege damages, First Amendment protection for commercial speech, the “reasonable consumer” standard, and related defenses.