Third Circuit Reaffirms “Rigorous Analysis” for Ascertaining Class Members under Rule 23

Cruz-Alvarez_FFeatured Regular Expert Column

Frank Cruz-Alvarez, Shook, Hardy & Bacon, L.L.P. (co-authored with Talia Zucker, Shook, Hardy & Bacon, L.L.P.)

On August 21, 2013, the U.S. Court of Appeals for the Third Circuit, relying on its decision in Marcus v. BMW of North America, Inc., 687 F.3d 583 (3d Cir. 2012), once again vacated a lower court’s decision to certify a class in a products liability action.  Carrera v. Bayer Corp., et al., No. 12-2621 (3d Cir. Aug. 21, 2013).  In a significant victory for the defense, the Third Circuit reversed class certification because Plaintiff Carrera failed to demonstrate that the class members were ascertainable – a prerequisite to class certification under Federal Rule of Civil Procedure 23.

Plaintiff Carrera commenced this class action against Bayer Corporation and Bayer Healthcare, LLC (“Bayer”) alleging that Bayer falsely and deceptively advertised its product One-A-Day WeightSmart, by claiming that it enhanced metabolism.  Id. at 4.  Bayer opposed certification largely because without a list of purchasers or documentary proof of purchase, the class could not be ascertained.  Id.  The lower court certified the class on Plaintiff’s proposal that ascertainability could be achieved through (1) retailer records and sales made with store loyalty rewards cards; and (2) affidavits of class members attesting they purchased the product.  Id. at 4-5. 

On appeal, the Third Circuit vacated class certification, rejecting Plaintiff’s purported methods for ascertaining class members as they did not satisfy the mandated “rigorous analysis.”  Id. at 9-10.  The flaw in Plaintiff’s first suggested method was 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 14.  The Court also declined to accept the process of submitting affidavits, mainly because it stripped away Bayer’s right to challenge class membership.  Id. at 15.  Significantly, the Court recognized that a “defendant in a class action has a due process right to raise individual challenges and defenses to claims, and a class action cannot be certified in a way that eviscerates this right or masks individual issues.”  Id. at 11 (emphasis added).

In further explaining its reasoning, the court took to Marcus, and reiterated its opinion that “[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 at 593.  If a plaintiff were to attempt to re-certify a class, the court “‘must resolve the critical issue of whether the defendants’ records can ascertain class members and, if not, whether there is a reliable, administratively feasible alternative.’”  Id. at 594.  The court repeated its caution against approving a method that would amount to “no more than ascertaining by potential class members’ say so.”  Id.  With these rules in mind, the court offered Plaintiff Carrera the opportunity to submit a screening model specific to this case that proves how the model will allow Bayer to exercise its due process right and challenge the affidavits as unreliable.  Carrera at 20.

Manufacturers are walking away with a big win in Carrera.  Indubitably, plaintiffs seeking to certify a class under Rule 23, particularly in the Third Circuit, will have to satisfy a rigorous analysis to prove that the class members are ascertainable.  And, even more significant, is a defendant’s due process right to challenge an individual’s membership in the class.  In the future, litigants will likely see Carrera and Marcus having a significant impact on certification of class actions.

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