Plaintiff Carrera sued Bayer on behalf of the class of Florida consumers who had bought Bayer’s WeightSmart dietary supplements. Carrera alleged that Bayer falsely claimed that the product increased metabolism. The district court certified the class action, and Bayer appealed. The Third Circuit Court of Appeals vacated the order certifying the class. The appellate court held that the plaintiff had failed to show that the class was “ascertainable.” Ascertainability, the curt held, required the plaintiff to show that each member of the class could be identified with certainty, and that affidavits from individuals attesting to their purchase of the product posed too great a risk of fraudulent or inaccurate claims. The court held that, without further evidence that the class was “ascertainable,” the case could not proceed as a class action. The plaintiff filed a petition for rehearing.
Public Citizen filed an amicus brief in support of the petition for rehearing. First, quoting articles and blog posts discussing the case, the amicus brief argued that the panel decision was a critical precedent that would have a “significant impact” on consumers’ ability to seek redress for deceptive marketing and defective products. Second, the brief argued that, unless overturned, the panel’s ruling would make it impossible for many people injured by deceptive marketing or defective products to obtain relief, would eliminate an important deterrent of illegal conduct, and yet do nothing to protect the legitimate interests of class members or defendants. The panel identified three concerns that an ascertainability requirement purportedly advances. None of these concerns justifies the panel’s decision.
The court denied rehearing, over the dissent of four judges.