On August 21, 2013 the Third Circuit vacated a district court’s order certifying a class of consumers who purchased Bayer One-A-Day Weight Smart multivitamin and dietary supplements in Florida, finding that class members were not ascertainable. Carrera v. Bayer Corp., No. 12-2621 (3d Cir. Aug. 21, 2013).

In Carrera, Gabriel Carrera brought a class action against Bayer Corporation and Bayer Healthcare, LLC (“Bayer”), claiming that Bayer falsely and deceptively advertised its product One-A-Day WeightSmart. WeightSmart was promoted as a multivitamin and dietary supplement that had metabolism-enhancing effects. Bayer sold WeightSmart in retail stores, such as CVS, until January 2007. Bayer did not sell it directly to consumers. Carrera alleged Bayer falsely claimed that WeightSmart enhanced metabolism by its inclusion of epigallocatechin gallate, a green tea extract.

Carrera then moved to certify a Rule 23(b)(3) class of Florida consumers under the Florida Deceptive and Unfair Trade Practices Act. Bayer opposed certification of the class, contending, among other things, that the class members were not ascertainable. Specifically, Bayer argued that there was no dispute that class members were unlikely to have documentary proof of purchase, such as packaging or receipts. And Bayer had no list of purchasers because, as noted, it did not sell WeightSmart directly to consumers. Despite these contentions, the district court certified the class. Bayer appealed the court’s ruling and the Third Circuit reversed. The Third Circuit applied the “rigorous analysis” requirement for class certification. The court stated: “Class ascertainability is an essential prerequisite of a class action, at least with respect to actions under Rule 23(b)(3). [T]here is no reason to doubt that the 'rigorous analysis' requirement applies with equal force to all Rule 23 requirements. Accordingly, a plaintiff must show, by a preponderance of the evidence, that the class is currently and readily ascertainable based on objective criteria, and a trial court must undertake a rigorous analysis of the evidence to determine if the standard is met.”

The court noted that “[t]he method of determining whether someone is in the class must be ‘administratively feasible,’ which means that identifying class members does not require individual fact intensive inquiries. A plaintiff does not satisfy the ascertainability requirement if individualized fact-finding or mini-trials will be required to prove class membership. In sum, 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, and permits defendant to challenge the evidence used to prove class membership.”

Applying this standard, the Court of Appeals held that the certified class was not ascertainable and rejected each of the plaintiff’s proposals for determining membership in the class. To illustrate, the Court of Appeals dismissed plaintiff’s proposal to rely on retailer records of online sales and sales using customer membership cards because “there [was] no evidence that a single purchaser of WeightSmart could be identified” using these records. Additionally, the Court of Appeals dismissed the plaintiff’s proposal to rely on affidavits of purported class members that they purchased WeightSmart and specifying the amount paid, reasoning in large part that doing so would deny Bayer the opportunity to challenge class membership. The court stated: “This is especially true where the named plaintiff’s deposition testimony suggested that individuals will have difficulty accurately recalling their purchases of WeightSmart.”