SAN FRANCISCO (Legal Newsline) – Rulings to be made by the U.S. Court of Appeals for the Ninth Circuiton cases related to class certification could have a significantimpact on a split between federal court stances on how strict the criteriafor certification should be, especially for suppliers of dietarysupplements faced with lawsuits in California courts.

“If class members must have some kind of proof of purchase,such as a receipt, to show they belong in the class, plaintiffs may be largelyunable to bring class actions for inexpensive consumer goods,” attorneys KathleenHarrison and Micheline Johnson of Baker, Donelson, Bearman, Caldwell &Berkowitz PC told Legal Newsline.

“Onthe other hand, if no proof of purchase is required, there are fewer barriersto class certification, and defendants may have to defend more class actions.”

The district courts split the center on the definition of an appropriateclass of plaintiffs, known as ascertainability, and the awarding class-widedamages in class action lawsuits. Specifically, the courts have been at odds onthe issue of what proof a class of consumers needs to provide in casesinvolving small, often undocumented purchases.

“The Ninth Circuit’s decision on the ascertainability issuecould be the difference between defendants being able to cut off liabilityearly on or having to litigate a class action lawsuit, which, due to the timecommitment and expense, can put pressure on defendants to settle,” Harrison andJohnson said.

In the false advertising case Briseno v. ConAgra Foods, Inc., the U.S. District Court for theCentral District of California granted certification of a class arguing againstConAgra’s allegations that their product was 100 percent natural, The court based the classdefinition on whether a consumer bought Wesson oils during the class period.

In comparison, the U.S. District Court for the NorthernDistrict of California denied a request for certification of a class in Jones v. ConAgra Foods, Inc.. The courtfound there was no way to determine who had purchased products with labelsmaking the claims in question about ingredients since the allegedly misleading labelswere changed during the class period.

In addition, damages were awarded to a class in Brazil v. Dole Packaged Foods, LLC, butthe District Court for the Northern District of California eventually decertifiedthe damages class because the class could not “isolate the price premium”related to a claim that a product was improperly labeled as all-natural fruit.

Oral arguments in the Braziland Briseno appeals will be heard inSeptember. Jones has been stayed toawait the outcome of a Supreme Court ruling on a jurisdictional matter in Microsoft Corp. v. Baker.

In Microsoft, Harrisonand Johnson said the U.S. Supreme Court will decide whether a federal appellatecourt has jurisdiction to review an order denying class certification after thenamed plaintiffs voluntarily dismiss their claims with prejudice.

They said thelower court denied class certification in Jones,and Jones then voluntarily dismissed the case with prejudice. Later, Jonesappealed the district court’s denial of class certification. If the Microsoft ruling confirms the appellatecourt’s jurisdiction, then the Ninth Circuit can hear the pending appeal.