A recent decision by the U.S. Court of Appeals for the Third Circuit may make it more difficult for plaintiffs to obtain class certification in Rule 23(b)(3) consumer class-action lawsuits where the matter involves disposable products not sold directly to the consumer and for which plaintiffs are unlikely to keep their receipts. In Carrera v. Bayer Corp., No. 12-2621, 2013 WL 4437225 (3d Cir. Aug. 21, 2013), the court vacated a lower court’s class certification order, finding the class members were not ascertainable. The court scrutinized the plaintiff’s method for identifying potential class members and stressed the importance of the defendant’s due process rights.
In Carrera, the plaintiff brought a class action against Bayer Corp. and Bayer Healthcare (together, Bayer), claiming that Bayer’s One-A-Day WeightSmart diet supplement was falsely advertised to Florida consumers. “Carrera alleges that Bayer falsely claimed WeightSmart enhanced metabolism.” Carrera, 2013 WL 4437225, at *1. Because Bayer never sold the product directly to consumers, it did not have an accurate list of purchasers.
Carrera claimed that class members could be ascertained by examining retailer records of online sales and sales made with store loyalty cards – such as a GNC Gold Card. They also offered to have potential class members sign affidavits saying that they purchased WeightSmart. The district court certified the class and defined it as “all persons who purchased WeightSmart in the state of Florida.” Id. at *2.
Bayer appealed the certification order, and the court noted that the only issue on appeal was whether the class members were ascertainable. Id. at *1. Bayer argued that “there was no evidence that any retailer records showed who purchased WeightSmart” and that the use of unverifiable affidavits violated its due process rights and failed to comply with Federal Rule of Civil Procedure 23. Id. at *2.
The Third Circuit agreed with Bayer, holding that “to satisfy ascertainability as it relates to proof of class membership, the plaintiff must demonstrate his purported method for ascertaining class members is reliable and administratively feasible.” Carrera, 2013 WL 4437225, at *5. The court found that the plaintiff’s proposed methodology to ascertain class members was deficient because the plaintiff failed to show that the retailer records that he contended could track customers’ online purchases or use of loyalty cards could be used as a means to identify class members. The court found that there was “no evidence that a single purchaser of WeightSmart could be identified using records of customer membership cards or records of online sales.” Id. at *5.
The court also found that the plaintiff’s proposed methodology of using affidavits to certify class members failed because it would have deprived the defendant of its essential right to challenge class membership, especially given that “the named plaintiff’s deposition testimony suggested that individuals will have difficulty accurately recalling their purchases of WeightSmart.” Id. at *6. Essentially, a plaintiff cannot suggest a method of how to identify class members if there is not sufficient evidence to establish the accuracy and feasibility of that method. The ascertainability requirement is an important part of the defendant’s due process rights because it allows a defendant to challenge the “reliability of the evidence submitted to prove class membership.” Id. at *4.
The Carrera court did not draw a distinction between a defendant’s right to challenge the evidence used to demonstrate class membership and the evidence used to prove the actual elements of the plaintiff’s claim. The court noted that Carrera must specifically show how the screening method would have allowed Bayer to challenge the affidavits of consumers who claimed to have purchased WeightSmart. The court further noted that “[m]ere assurances that a model can screen out unreliable affidavits will be insufficient.” Id. at *8. The court stressed the importance of undertaking a rigorous analysis of the evidence used to identify potential class members and providing an opportunity for defendants to challenge that evidence.
Accordingly, the court decertified the class and remanded the case with instructions that “Carrera be allowed to conduct further, limited discovery on the issue of ascertainability and afforded another opportunity to satisfy the ascertainability requirement.” Id. at *8. Additional discovery was permitted because the Carrera trial court had certified that class before the Third Circuit decided Marcus v. BMW of North America, LLC, 687 F.3d 583 (3d Cir. 2012) holding, “[I]f class members are impossible to identify without extensive and individualized fact-finding or ‘mini-trials,’ then a class action is inappropriate.” Marcus, 687 F.3d 583 at 593.
Julia Rafferty is Of Counsel in Stradley Ronon’s Philadelphia office. She represents national and international companies and has significant experience in representing life sciences companies in product liability cases. Christopher Manchin, law student of the Earle Mack School of Law at Drexel University, assisted with the preparation of this article.