Third Circuit Decision Gives Ascertainability Argument Teeth

On August 21, 2013, the U.S. Court of Appeals for the Third Circuit issued a decision reversing and vacating certification of a class of Florida purchasers of Bayer's One-A-Day WeightSmart multivitamin.  Carrera v. Bayer Corp., No. 12-2621 (3d Cir. Aug. 21, 2013).  The Court found that the "rigorous analysis" requirement must be applied to a court's evaluation of whether the plaintiff established, by a preponderance of the evidence, ascertainability of the class (i.e., whether membership in the class can be identified, at the time of class certification, without individualized mini-trials).

In Carrera, the plaintiff filed a putative class action against Bayer based on allegations that Bayer falsely advertised its product as enhancing metabolism.  Arguing against certification, Bayer maintained that the proposed class was not ascertainable because there was no list of purchasers and Bayer did not sell WeightSmart directly to consumers.  The District Court certified the class and Bayer appealed.

The Third Circuit reversed class certification and found that "[c]lass ascertainability is an essential prerequisite of a class action, at least with respect to actions under Rule 23(b)(3)."  In addition, the Court found that defendants have a fundamental due-process right to challenge individuals' membership in a class.  "A defendant has a similar, if not the same, due process right to challenge the proof used to demonstrate class membership as it does to challenge the elements of a plaintiff's claim."

Carrera is a momentous victory for manufacturers of consumer products, as well as a significant decision for class action defendants in general.  It will be interesting to see whether Carrera appeals the decision, and, in the meantime, whether other Circuits will follow suit.  If Carrera is any indication of things to come, the viability of consumer class actions is in question.


About The Author

Erin Rhinehart | Faruki Co-Managing Partner