Third Circuit Rejects Effort At End Run Around The Ascertainability Requirement

We previously wrote about the Third Circuit's decision in Carrera v. Bayer Corp., which reversed a district court's class-certification order because there was no reliable way to ascertain class membership—indeed, no way to identify who was a member of the class aside from a class member's own say-so. Last week, the full Third Circuit denied (pdf) the plaintiff's request to rehear the case en banc over the dissent of four judges. The clear message of Carrera is that when plaintiffs file class actions that have no hope of compensating class members for alleged wrongs because the class members can't be found, courts should refuse to let these actions proceed.

As we discuss below, the denial of rehearing is significant in itself, given the concerted efforts by Carrera and his amici to draw attention to the case. But what might be most significant about this latest set of opinions is what even the dissenting judges did not say.

First, here's some brief background about the case. Carrera filed a class action against Bayer alleging that the company overstated the health benefits of its One-A-Day WeightSmart multivitamin. He sought to represent a putative class of all consumers who ever purchased WeightSmart in Florida. The district court granted class certification, but the Third Circuit granted Bayer's petition for review under Rule 23(f) and reversed.

The problem for Carrera, the Third Circuit explained, is that there is no reliable way to ascertain who the class members are. WeightSmart was sold at CVS and other retail stores throughout the state, rather than purchased directly from Bayer, so the company did not—and could not—have a "master list" of customers who bought the product. There's no indication that the retailers kept records of which customers purchased WeightSmart, and even if some purchasers might be identified through loyalty cards or online purchases, that list would be grossly incomplete. Few if any customers are likely to have saved receipts or proofs of purchase documenting each of their vitamin purchases. And Bayer stopped selling WeightSmart in Florida in January 2007, but the class was not certified until November 2011, so it is especially unlikely that reliable records exist for purchases made many years ago.

Because there was no reliable way to determine the identities of putative class members, the Third Circuit held that class certification was improper. Although ascertainability is not among the explicit requirements...