Third Circuit Adds New Barrier to Class Action Lawsuits

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The Third Circuit Court of Appeals recently ruled that without sales records or receipts there may be no reliable way to identify eligible Class Members, a ruling that seriously inhibits the ability of consumers to pursue class action lawsuits against food manufacturers and other makers of low-cost products.

In the August 21 opinion, the three-judge panel reversed the certification of a class of Florida consumers who alleged that Bayer Corp. falsely advertised the benefits of its One-A-Day WeightSmart vitamin. In this precedential ruling, the court found that it would be overly difficult to determine which consumers were eligible Class Members.

The panel also rejected plaintiff Gabriel Carrera’s argument that class membership could be ascertained by looking at retailer records for consumer loyalty cards and online purchases. The court found that there was no proof that retailers had these records. Further, they found that they could not rely on affidavits submitted by consumers who swore that they purchased the vitamins because there was no way to prove they were truthful.

Attorneys for the plaintiffs argued that the court’s ruling puts a serious damper on class action lawsuits that take issue with inexpensive products that are typically not monitored or tracked by retailers, and which most consumers would not keep a receipt for. They fear that the ruling will impose significant barriers to plaintiffs seeking to file class action lawsuits based on food labeling issues or other similar litigation.

Last year, the Third Circuit ruled in Marcus v. BMW of North America LLC, a class action lawsuit alleging tire defects, that a class should not be certified because the plaintiff had not adequately shown how to figure out which consumers had experienced flat tire and had it replaced.

In Carrera’s case, the Third Circuit found that there is no proof that retailers retain online sales or loyalty card records that could provide proof that a consumer purchased the vitamins.

“In this case, the ascertainability question is whether each Class Member purchased WeightSmart in Florida. If this were an individual claim, a plaintiff would have to prove at trial he purchased WeightSmart. A defendant in a class action has a due process right to raise individual challenges and defenses to claims, and a class action cannot be certified in a way that eviscerates this right or masks individual issues,” the Third Circuit said.

Although Carrera argued that the low value of the products made false affidavits unlikely, the Third Circuit found that Bayer must still have a way to challenge class membership. The judges found that the principle of ascertainability protects both Class Members and defendants from fabricated claims. They held that Carrera could overcome the ascertainable hurdle if he is able to devise a case-specific screening model that would allow Bayer to challenge the affidavits.

“In sum, to satisfy ascertainability as it relates to proof of class membership, the plaintiff must demonstrate hi purported method for ascertaining Class Members is reliable and administratively feasible, and permits a defendant to challenge the evidence used to prove class membership,” the Third Circuit said.

While this precedential decision will only directly affect class action lawsuits that are brought before the Third Circuit Court of Appeals, it provides a significant barrier to plaintiffs seeking class certification for cases involving inexpensive food and health products.

Carrera is represented by Caroline Bartlett, James Cecchi and Lindsey Taylor of Carella Byrne Cecchi Olstein Brody & Agnello PC and Joe Whatley of Whatley Drake & Kallas LLC.

The case is Carrera v. Bayer Corp. et al., Case No. 12-2621, in the U.S. Court of Appeals for the Third Circuit.

UPDATE: The Appeals Court sided with the plaintiff and reversed it’s previous ruling. A New Jersey Federal judge granted preliminary approval to a proposed class action settlement in December 2014. Class Members have until May 4, 2015 to file a claim to receive between $15 and $250 from the proposed class action settlement. 

UPDATE 2: On Aug. 3, 2015, viewers began reporting they were receiving checks in the mail from the Bayer WeightSmart class action settlement. Congratulations to everyone who submitted a valid claim and got PAID!