No En Banc Review or Rehearing in Carrera v. Bayer

Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013), severely restricted class certification in cases that involve products of whose purchasers selling defendants do not keep records.  That is the case with many consumer goods that are sold at retail, such as the Bayer multi-vitamin dietary supplement that is the subject of this case.  The discussion of Carrera here urged that either a panel rehearing or en banc review be granted and the panel decision undone.  Plaintiff did seek rehearing and en banc review.  [Disclosure:  Plaintiff’s petition in that regard cited this blog’s discussion of the panel opinion, as noted here, and Bayer’s responding brief did so as well.]

Last Friday, the Third Circuit denied plaintiff’s request.  The court’s ruling is available here.  However, four very experienced judges (Chief Judge McKee and Judges Rendell, Ambro, and Fuentes) would have granted review.

Judge Ambro, the author of Marcus v. BMW of North America, LLC, 687 F.3d 583 (3d Cir. 2012), the case that began the court’s mistaken trend regarding ascertainability of classes that culminated in Carrera, wrote an opinion for those four judges.  He stated that though ascertainability is necessary for Rule 23 to work, “how far we go in requiring plaintiffs to prove that ability at the outset is exceptionally important and requires a delicate balancing of interests.  It merits not only en banc review by our Court but also review by the Judicial Conference’s Committee on Rules of Practice and Procedure.”  Judge Ambro rightly asserted that the panel opinion “goes too far” in having found an abuse of discretion by the district judge on the ascertainability issue.  “Rule 23’s implied requirement of ascertainability is judicially created.  Because it is a creature of common law, I believe that we should be flexible with its application, especially in instances where the defendant’s actions cause the difficulty.  Where, as here, a defendant’s lack of records and business practices make it more difficult to ascertain the members of an otherwise objectively verifiable low-value class, the consumers who make up that class should not be made to suffer.  The consequence of a step too far is the curtailment of well-intentioned class actions with many members yet all with claims too minimal to be asserted individually.”

Judge Ambro’s opinion is entirely consistent with the fundamental purposes of the class action procedure, purposes that many courts (sometimes even including the Third Circuit) have not sufficiently accounted for in recent years.  The brief statement of Judges Smith, Chagares, and Scirical, the judges who constituted the panel in Carrera, in support of the denial of review does virtually nothing to rebut Judge Ambro’s compelling analysis of the issues.