In a recent decision, the Third Circuit Court of Appeals vacated a district court's order certifying a statewide consumer fraud class action. Interestingly, in its decision the Third Circuit seemed to suggest that the plaintiffs would need to produce some form of objective proof of purchase (i.e., retailer records, receipts, or product packaging) in order to satisfy Rule 23's ascertainability requirement.

In Carrera v. Bayer Corp., plaintiffs brought a class action against Bayer Corporation and Bayer Healthcare, LLC ("Bayer"), claiming that Bayer falsely and deceptively advertised its One-A-Day WeightSmart product ("WeightSmart") as having metabolism-enhancing effects. It was undisputed that class members were unlikely to have documentary proof of purchase (such as packaging or receipts) and that, because Bayer did not sell directly to consumers, it did not have a list of purchasers. The plaintiffs moved for class certification of a class of all persons who purchased WeightSmart in Florida, and Bayer challenged plaintiff's motion on the grounds that, inter alia, the class members were not ascertainable. The district court, in rejecting Bayer's argument, certified a class, characterizing the ascertainability issue raised by Bayer as one of manageability. The Third Circuit granted Bayer’s interlocutory appeal.

On appeal, plaintiffs argued that the class could be ascertained in one of two ways. First, plaintiffs argued that records from retailers could be used to identify WeightSmart purchasers in Florida. Second, plaintiffs argued that they could obtain affidavits from class members attesting to their purchase of WeightSmart. The Third Circuit rejected both of these proposed methods of ascertaining class members.

The Third Circuit rejected plaintiffs' argument that retailer records could be used to prove class membership. Although the Third Circuit recognized that "retailer records may be a perfectly acceptable method of proving class membership," it concluded that "there is no evidence that a single purchaser of WeightSmart could be identified using records of customer membership cards or records of online sales" in the present case.

In rejecting the notion that class members could be determined though affidavits, the Third Circuit noted that allowing determination of class membership through affidavits would not permit Bayer the opportunity to challenge class membership short of deposing each and every class member. The Third Circuit also noted that using unsubstantiated affidavits to prove class membership might also result in fraudulent claims.

Having rejected the notion that a consumer's own testimony could be used to ascertain membership in a class, the Third Circuit seems to have suggested that absent "proof of purchase" -- whether in the form of a receipt, product packaging, or records maintained by a retailer or manufacturer -- class certification may not be possible. If the Third Circuit indeed went so far in its decision, consumer fraud class actions based on small ticket consumable products, such as dietary supplements, foods, and beverages, may now be significantly more difficult to certify in the Third Circuit.