Carrera v. Bayer Corp.

Decision Date21 August 2013
Docket NumberNo. 12–2621.,12–2621.
Citation727 F.3d 300
PartiesGabriel Joseph CARRERA, on behalf of himself and all others similarly situated v. BAYER CORPORATION; Bayer Healthcare, LLC., Appellants. *(Amended Pursuant to the Clerk's Order of July 5, 2012).
CourtU.S. Court of Appeals — Third Circuit


Matthew R. Ford, Esq., Christopher D. Landgraff, Esq., Rebecca Weinstein Bacon, Esq., [argued], Bartlit, Beck, Herman, Palenchar & Scott, Chicago, IL, for Appellants.

Caroline F. Bartlett, Esq., James E. Cecchi, Esq., Lindsey H. Taylor, Esq., Carella, Byrne, Cecchi, Olstein, Brody & Agnello, Roseland, NJ, Joe R. Whatley, Jr., Esq., [argued], Whatley, Drake & Kallas, New York, NY, for Appellee.

John Beisner, Esq., Skaden, Arps, Slate, Meagher & Flom, Washington, DC, for Amicus Curiae.

Before: SCIRICA, SMITH and CHAGARES, Circuit Judges.


SCIRICA, Circuit Judge.

In this Fed.R.Civ.P. 23(f) appeal, Bayer Corporation and Bayer Healthcare contest the certification of a class of consumers who purchased Bayer's One–A–Day WeightSmart diet supplement in Florida. The sole issue on appeal is whether the class members are ascertainable. While this interlocutory appeal was pending, we decided Marcus v. BMW of North America, LLC, in which we held [i]f class members are impossible to identify without extensiveand individualized fact-finding or ‘mini-trials,’ then a class action is inappropriate.” 687 F.3d 583, 593 (3d Cir.2012). We explained that if class members cannot be ascertained from a defendant's records, there must be “a reliable, administratively feasible alternative,” but we cautioned “against approving a method that would amount to no more than ascertaining by potential class members' say so.” Id. at 594. In light of Marcus, we will vacate the class certification order and remand.


Gabriel Carrera brings this 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. The recommended daily dose was one tablet and prices ranged from about $8.99 for fifty tablets to about $16.99 for one hundred tablets. Bayer sold WeightSmart in retail stores, such as CVS, until January 2007. Bayer did not sell it directly to consumers. Carrera alleges Bayer falsely claimed that WeightSmart enhanced metabolism by its inclusion of epigallocatechin gallate, a green tea extract.

Carrera initially sought to certify a nationwide class under Fed.R.Civ.P. 23(b)(3) bringing a claim under the New Jersey Consumer Fraud Act, as Bayer's headquarters is in New Jersey. The court denied certification, concluding that New Jersey law did not apply to out-of-state customers. This order is not before us on appeal.

Carrera then moved to certify a Rule 23(b)(3) class of Florida consumers under the Florida Deceptive and Unfair Trade Practices Act. One of Bayer's challenges to certification, and the issue on this appeal, is whether the class members are ascertainable. In this case, there is no dispute that class members are unlikely to have documentary proof of purchase, such as packaging or receipts. And Bayer has no list of purchasers because, as noted, it did not sell WeightSmart directly to consumers.

Carrera advanced two ways to ascertain the class: first, by retailer records of online sales and sales made with store loyalty or rewards cards; second, by affidavits of class members, attesting they purchased WeightSmart and stating the amount they purchased. Bayer challenged this latter method on the ground that memories of putative class members will be unreliable. Bayer argued that, in Carrera's own deposition testimony, he failed to remember when he purchased WeightSmart and that he confused it with WeightSmart Advanced and other generic or similar products (none of which are part of this litigation). In response, Carrera produced a declaration of James Prutsman, who works for a company that verifies and processes class settlement claims, in which Prutsman stated there are ways to verify the types of affidavits at issue here and screen out fraudulent claims.

The court certified the class, defined as all persons who purchased WeightSmart in Florida.1 It characterized the issue of ascertainability as one of manageability, stating ‘speculative problems with case management’ are insufficient to prevent class certification. Carrera v. Bayer Corp., Civ. A. No. 08–4716, 2011 WL 5878376, at *4 (D.N.J. Nov. 22, 2011) (quoting Klay v. Humana, Inc., 382 F.3d 1241, 1272–73 (11th Cir.2004)). The court concluded Carrera had satisfied his burden, noting “that the claims involved will be relatively small and Plaintiff points to methods to verify claims.” Id. Bayer appealed. It contends Carrera has failed to demonstrate the class is ascertainable because there is no evidence that any retailer records show who purchased WeightSmart. Bayer also argues that the use of unverifiable affidavits to ascertain class members fails to comply with Rule 23 and violates its rights under the due process clause.


The District Court had jurisdiction under 28 U.S.C. § 1332(d). We have jurisdiction under 28 U.S.C. § 1292(e) and Fed.R.Civ.P. 23(f). We review a class certification order for abuse of discretion, which occurs if the district court's decision rests upon a clearly erroneous finding of fact, an errant conclusion of law or an improper application of law to fact.” In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 312 (3d Cir.2008) (quotation omitted). “Whether an incorrect legal standard has been used is an issue of law to be reviewed de novo. Id. (quotation omitted).


In Marcus, we explained the concept of ascertainability at length for the first time. 687 F.3d at 592–95. The claim in Marcus was that Bridgestone run-flat tires (“RFTs”) were defective because they were highly susceptible to flats; could only be replaced, not repaired; and were highly priced. Id. at 588. The district court certified a Rule 23(b)(3) class consisting of “any and all current and former owners and lessees of 2006, 2007, 2008, and 2009 BMW vehicles equipped with run-flat tires manufactured by Bridgestone ... and sold or leased in New Jersey whose Tires have gone flat and been replaced.” Id. at 590 (quotation and alterations omitted). The defendants appealed, and we vacated the order certifying the class.

Before turning to the explicit requirements of Rule 23 in Marcus, we addressed two “preliminary matters”: first, whether the class was clearly defined, and second, “whether the class must be (and, if so, is in fact) objectively ascertainable.” Id. at 591. We concluded the class was not clearly defined. At the least, the definition of the class was broader than intended and did not define the claims, issues, or defenses to be treated on a class-wide basis. Id. at 592. Accordingly, we remanded the case for clarification of the class definition.

We then addressed ascertainability. We began by stating, [m]any courts and commentators have recognized that an essential prerequisite of a class action, at least with respect to actions under Rule 23(b)(3), is that the class must be currently and readily ascertainable based on objective criteria.” Id. at 592–93 (citing cases). “If class members are impossible to identify without extensive and individualized fact-finding or ‘mini-trials,’ then a class action is inappropriate.” Id. at 593. We noted, [s]ome courts have held that where nothing in company databases shows or could show whether individuals should be included in the proposed class, the class definition fails.” Id. (citing cases).

We then explained the

ascertainability requirement serves several important objectives. First, it eliminates serious administrative burdens that are incongruous with the efficiencies expected in a class action by insisting on the easy identification of class members. Second, it protects absent class members by facilitating the best notice practicable under Rule 23(c)(2) in a Rule 23(b)(3) action. Third, it protects defendants by ensuring that those persons who will be bound by the final judgment are clearly identifiable.

Id. (citations and quotations omitted).

We set forth why the “proposed class action raise[d] serious ascertainability issues.” Id. Defendant BMW explained that it could not determine by its records which vehicles fit the definition of the class because it did not keep records of which cars got fitted with Bridgestone RFTs, because some customers may have changed tires (of which BWM had no record), and because BMW would not have known which customers experienced flat tires. Id. at 593–94. We stated that if plaintiff were to attempt to re-certify a class on remand, the court “must resolve the critical issue of whether the defendants' records can ascertain class members and, if not, whether there is a reliable, administratively feasible alternative.” Id. at 594. We cautioned “against approving a method that would amount to no more than ascertaining by potential class members' say so. For example, simply having potential class members submit affidavits that their Bridgestone RFTs have gone flat and been replaced may not be proper or just.” Id. (quotation omitted). “Forcing BMW and Bridgestone to accept as true absent persons' declarations that they are members of the class, without further indicia of reliability, would have serious due process implications.” Id.


“A party seeking class certification must affirmatively demonstrate his compliance with” Rule 23. Wal–Mart Stores, Inc. v. Dukes, ––– U.S. ––––, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011). “Class certification is proper only ‘if the trial court is satisfied, after a rigorous analysis, that the prerequisites' of Rule 23 are met.” Hydrogen Peroxide, 552 F.3d at 309 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161, 102...

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