Class Ascertainability- The Third Circuit Approaches the Precipice

Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013).  In Marcus v. BMW of North America, Inc., 687 F.3d 583 (3d Cir. 2012), the Third Circuit embarked on a very dangerous path in addressing the obligation of a putative class action plaintiff to prove that the proposed class is “ascertainable.”  Ascertainability is not even a requirement contained in Federal Rule of Cvil Procedure 23, which specifies the critieria for class action certification.  As discussed here, if not appropriately cabined, Marcus had the potential to block class certification in most cases involving retail products, such as aspirin, toilet paper, or most other consumer goods, where there is normally no complete record of who purchased the product at issue, either in defendants’ possession or elsewhere (as opposed to products such as automobiles, where the identities of purchasers and lessees are easily available from defendants).

Earlier this month, in Hayes v. Wal-Mart, Inc., 725 F.3d 349 (3d Cir. 2013), discussed here, the Third Circuit, in an opinion by Judge Scirica, reversed another class certification ruling, based in part on the Marcus “ascertainability” language.  There was still the possibility that the court would cut back the loose language in Marcus that would make most consumer class actions uncertifiable.

Yesterday, however, Judge Scirica issued an opinion in this case, which involved allegations that Bayer had deceptively marketed its One-A-Day WeightSmart multivitamin dietary supplement pills.  Having lost a motion to certify a nationwide class under the New Jersey Consumer Fraud Act, plaintiff sought a Florida class only, based on alleged violations of Florida consumer protection law.  The district court certified the class.  The Third Circuit reversed, relying on the Marcus “ascertainability” idea.  The panel rejected several arguments that plaintiff had made in support of his contention that the class was sufiiciently ascertainable.  Judge Scirica did, however, remand the matter to allow plaintiff to develop more evidence as to one of his proposed methods of satisfying ascertainability.  But that method was the most complicated, expensive and unwieldy one, involving, as it did, expert testimony on the issue.

As a result of this opinion, the Third Circuit has come perilously close to abrogating class certification in cases involving mass-marketed consumer products.  There are very few steps left before the court steps over the edge of the cliff.  Whatever the merit of an ascertainability criterion of some sort (and putting aside the fact that Rule 23 does not require it), the intent of the class action mechanism will be utterly defeated if the court does not turn back from its current path.  This decision should be reconsidered, taken en banc, or restricted in the next such case to reach the court.