The Northern District of California recently denied class certification related to claims of improper marketing and advertising of Fresh Step cat litter (In Re Clorox Consumer Litigation, Case No. 12-00280-SC (N.D. Cal. July 28, 2014) (ECF No. 129)). One of the reasons was a failure to establish a class that was sufficiently ascertainable, as plaintiffs had not kept their receipts..
The Court concluded there was “no administratively feasible method of determining membership for the vast majority of potential members of Plaintiffs’ proposed sub-classes.”, stating that if plaintiffs intend to rely on retailer records, they must show that Fresh Step retailers even had sufficient records to identify the class. The Court specifically disallowed consumer affidavits alone as a basis for identification.