One of the things we like to do is flag for our readers interesting arguments raised by amicus on important appeals. The Product Liability Advisory Council recently submitted a brief to the Third Circuit. weighing in on the surprising and troubling certification of a class of consumers in a vitamin case. Carrera v. Bayer Corp. et al., No.12-2621 (3d Cir. 2012).

The implicit requirement of ascertainability is an important but sometimes overlooked prerequisite to class certification. A plaintiff must offer a definition of a class that is precise, objective and presently ascertainable. A threshold requirement to a Rule 23 action is the actual existence of a class which is sufficiently definite and identifiable. See, e.g., Kline v. Sec. Guards, Inc., 196 F.R.D. 261, 266 (E.D. Pa. 2000); Reilly v. Gould, Inc., 965 F. Supp. 588, 596 (M.D. Pa. 1997); Clay v. Am. Tobacco Co., 188 F.R.D. 483 (S.D. Ill. 1999). The initial inquiry on class definition is distinct from the analysis required by Federal Rule of Civil Procedure 23. See, e.g., Sanneman v. Chrysler Corp., 191 F.R.D. 441, 446 n. 8 (E.D. Pa. 2000). This notion means, in part, that the court can see sufficient administrative feasibility in determining whether a particular person belongs to a class -- that the court can identify class members in a practical and non-burdensome manner. A “proposed class must be sufficiently identifiable,” and it must be “administratively feasible to determine whether a given individual is a member of the class.”Mueller v. CBS, Inc., 200 F.R.D. 227, 233 (W.D. Pa. 2001). A class may not be ascertainable if it will require individual inquiry into each class member’s particular situation to determine whether that plaintiff suffered the injury alleged. Similarly, a class is not ascertainable if membership depends on a particular subjective state of mind. And even when plaintiffs offer ostensibly objective criteria for membership, the court must be able to apply that objective criteria to determine who is in the class without addressing numerous fact-intensive questions. Certification is denied when determining membership in the class essentially requires a mini-hearing as to each prospective class member. E.g., Agostino v. Quest Diagnostics Inc., 256 F.R.D. 437, 478 (D.N.J. 2009); Solo v. Bausch & Lomb Inc., 2009 WL 4287706, (D. S.C. Sept. 25, 2009) (class not appropriate for certification where determining class membership would require “fact-intensive mini-trials”).

Here, the trial court certified a class of Florida residents who purchased One-A-Day WeightSmart, a multivitamin that Bayer stopped selling in January 2007 – more than five years ago. As the experience of the named plaintiff vividly illustrated, PLAC noted, membership in the class could not be demonstrated through objective documentation. Obviously, most consumers do not keep receipts or packaging from small-value, one-use products consumed years ago, and  plaintiff could not substantiate his own purchases (or offer any evidence that anyone else’s purchases could be substantiated).

Instead, noted the amicus, plaintiff proposed to prove class membership – for himself and for the alleged members of the class – through self-serving statements whose veracity Bayer would have no ability to challenge. As the district court’s brief order described it, plaintiff and the other class members who lack objectively verifiable evidence that they ever purchased WeightSmart could still “establish” class membership by way of “claim forms or affidavits.” The order apparently made no provision for any substantive challenge to these proposed forms or affidavits; rather, the court viewed such submissions as “sufficient” in themselves to “verify claims.”

This one-sided procedure clearly violates a defendant's fundamental right to present individualized defenses, a right that is protected by the Due Process Clause. That right cannot be vitiated merely because the case is a putative class action or because the claims at issue have low dollar values.

Nor is the right to challenge class membership a mere technicality, noted PLAC. The named plaintiff himself had no definitive evidence that he purchased the product at issue in his suit. To the contrary, there was a real question, flagged by PLAC, whether he ever bought WeightSmart, given his erroneous recollection of the product’s packaging and the time period when it was on the market. Other potential class members would face similar challenges in proving that they purchased WeightSmart. Contrary to the district court's view, these were not minor manageability issues that should not prevent certification of a class.  That view, noted PLAC, confused Bayer’s fundamental rights with minor procedural issues that can be disregarded in service of class certification.

PLAC correctly pointed out the real danger in decisions like this: establishing a rule of law that defendants can be held liable to consumers without any real proof that those consumers purchased the defendants’ products, and sending a message that administrative convenience can override the basic due-process right to defend oneself in litigation.