Advertising Law Blog

In Carrera v. Bayer Corporation, decided August 21, 2013, the Third Circuit Court of Appeals issued an important ruling making class certification more difficult to achieve in certain consumer class actions. The Third Circuit's decision held that if the members of a potential class cannot be ascertained from the defendant's records, there must be a reliable and administratively feasible alternative to determine class membership, or else class certification should be denied.

The plaintiff in this case sought to certify a class of a class of consumers who purchased Bayer's One-A-Day WeightSmart diet supplement, alleging that Bayer falsely advertised that its green tea extract product would speed up metabolism and cause weight loss. Bayer did not sell the product directly to consumers, so there was no complete list of purchasers available to define the class. The plaintiff sought to ascertain the class from retailer records of sales made either online or through loyalty reward programs, and also to allow self-reporting plaintiffs to add themselves to the class by filing an affidavit stating that they had previously purchased the product in question. The district court accepted this proposal and certified a class of Florida purchasers.

The Third Circuit reversed the certification ruling, focusing on whether membership in the class was ascertainable, and ultimately concluding that it was not. A defendant in a class action has a due process right to raise individual challenges and defenses to each class members' claims, and the Third Circuit emphasized that a class cannot be certified in a way that eviscerates a defendant's rights or masks individual issues. A plaintiff does not satisfy the ascertainability requirement if individualized fact-finding or mini-trials is required to prove class membership.

Specifically, the Third Circuit concluded, "there is no evidence that a single purchaser of WeightSmart could be identified using records of customer membership cards or records of online sales. There is no evidence that retailers even have records for the relevant period." It also held that the plaintiff did not propose a method that would screen out false or erroneous consumer affidavits of purchase. "If fraudulent or inaccurate claims materially reduce true class members relief, these class members could argue the named plaintiff did not adequately represent them because he proceeded with the understanding that absent members may get less than full relief."

Although the Third Circuit decertified the class, the plaintiff was afforded another opportunity to satisfy the ascertainability requirement.