We recently wrote about the potential dark side of store loyalty cards, citing a putative class action filed in New York City. In the wake of a decision denying classification in that case we discussed earlier, our concern has been somewhat alleviated. In his August 6, 2015 decision, a federal judge said that data of purchases obtained from loyalty programs was not enough to make the class ascertainable.

The case is Ault v. J.M. Smucker Co., Case No. 13 Civ. 3409 (PAC) (S.D.N.Y. filed May 21, 2013), where Plaintiff, Ms. Ault, sought to represent a class of New York consumers who purchased Crisco Oils. The cooking oils, she claimed, were improperly labeled as “All Natural” because they used genetically modified organisms. In support of her claim that the class members could be ascertained, Ms. Ault asserted that many purchasers could be identified from retailer records tied to purchases made by the purchasers using loyalty cards. Apparently, Ms. Ault’s counsel had served subpoenas on “major California retainers” identified by Smucker as purveyors of the Crisco oils at issue and received identifying information for “consumers account for over 4.5 million sales of the Cooking Oils.” This evidence was not enough, however.

Specifically, the Court found Ms. Ault’s proffered evidence to be insufficient because she “offer[ed] no evidence concerning what percentage of sales this number represents, whether she could obtain similar information from New York retailers, and whether such data would identify more than a small percentage of class members.”

The Court’s ruling is good news because it may discourage plaintiffs’ lawyers from relying on loyalty program data to identify potential class members. We will have to wait to see whether other judges take the same view as the judge in this case or whether the decision is used by plaintiffs’ lawyers as a road map for future discovery. This issue has not gone away yet.