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Shaffer Examines Ascertainability Issues Raises by Skinnygirl Ruling

August 8, 2014

Law360 published an article written by Advertising, Marketing & Promotions Partner Scott Shaffer examining why class certification was denied in Stewart v. Beam Global Spirits & Wine. The plaintiffs in the consumer class action suit challenged advertised claims that Skinnygirl Margarita drinks were all natural and a “healthy alternative to other commercial margarita products.” But the Court ruled that the plaintiffs failed to meet the standards of Rule 23 because they failed to propose an administratively feasible method of ascertaining the retail purchasers of the product. Rule 23, which governs class action certification, does not contain an explicit requirement that the identity of all class members must be ascertainable. However, Shaffer explains how the Skinnygirl decision indicates that not only are federal courts beginning to impose such a requirement, and how they are increasingly placing the burden of persuasion on plaintiffs to satisfy this requirement. Please also read Shaffer’s prior blog entry on the subject.

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