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Practice Tip: Constitutional Standing, Numerosity, and the Beer Drinker's Burden

By Andrew Tuck

The first part of this article, published last month, explained the background behind lawsuits alleging that Anheuser-Busch InBev (AB InBev) is “watering down” its beer, and that consumers can purportedly bring a class action against the company in federal court. It then described the problem of the individualized “injury inquiry” that should present an insurmountable obstacle to class certification, and different lines of reasoning courts ' particularly in the Ninth Circuit ' have applied to circumvent this highly individualized injury inquiry and certify classes.

In Part Two herein, we suggest that in federal court the injury inquiry implicates constitutional standing and the often-neglected numerosity requirement for class certification in such a way that the lines of reasoning used to circumvent the injury inquiry are inapplicable ' particularly in an industry as driven by advertising as the beer industry.

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