In Carrera v. Bayer Corp., No. 12-2621, slip op. (3d Cir. Aug. 21, 2013), the Third Circuit told us something we already knew: a class that cannot be ascertained cannot be certified. This is the second time within the past year or so that the Third Circuit has reminded us of this fundamental tenet of class certification. Marcus v. BMW of North America, LLC, 687 F.3d 583 (3d Cir. 2012). (See my post about Marcus, August 13, 2012.)
Carrera sued Bayer over its advertising of One-A-Day WeightSmart. After certification of a nationwide class was denied, Carrera moved to certify a class of Florida consumers under that state’s Deceptive and Unfair Trade Practices Act. The district court certified the class and Bayer sought an interlocutory appeal under Rule 23(f), arguing that class members could not be identified.
In vacating the certification and remanding, the Third Circuit relied on its renewed call for a “rigorous analysis” of the class certification requirements in In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305 (3d Cir. 2008), as well as on Marcus, in which it held that ” a plaintiff must show by a preponderance of the evidence, that the class is ‘currently and readily ascertainable based on objective criteria.”
The court reasoned that just as in an individual trial, a defendant has the due process right to question each class member’s claims and defenses, and “[a]scertainability provides due process by requiring that a defendant be able to test the reliability of the evidence to prove class membership.” Moreover, the court ruled, ascertainability must be amenable to a feasible administrative test, so that “mini-trials” are not necessary to determine class membership.
Carrera argued that class membership could be obtained in part based on a retailer’s records. However, given that not all retailers kept records, the court did not see this method as helpful. Carrera further argued that the court should allow putative class members to rely on affidavits. However, the court held that the affidavit approach would not allow Bayer to test class membership. Carrera further contended that because the total amount Bayer would owe would depend on the total value of the product sold, or $14 million, class membership was irrelevant to damages. But, the court reasoned that Carrera’s methodology would mean that fraudulent affidavits could render lower awards for other class members, harming class members and arguably making Carrera less than an adequate class representative, and opening up any judgment to collateral attack.
While nothing new, Carrera is an important reminder that some classes are not meant to be certified, a message often lost nowadays in plaintiffs’ creative efforts to certify classes — most recently, ones that are too small for meaningful awards or too fraught with individualized damages issues.