On May 2nd, the Third Circuit declined to rehear en banc its 2013 decision to reverse class certification in Carrera v. Bayer Corp, which created a big hurdle for would-be plaintiffs bringing suit in New Jersey, Pennsylvania and Delaware who fail to keep records of their retail purchases.

In Carrera, the plaintiff brought what was styled as a class action suit against Bayer, which makes the multivitamin One-A-Day WeightSmart. The suit alleged that Bayer deceptively advertised that product as enhancing metabolism due to the inclusion of a green tea extract. Bayer challenged class certification on the ground that the class was not ascertainable. Bayer argued that since it sold the product through retailers and not direct to consumers, it had no records of retail purchases, and that plaintiff did not either. Plaintiff argued that class membership could be sufficiently demonstrated either by affidavits from class members or retailer records of online sales and sales made with store rewards cards.

The Third Circuit rejected both of plaintiff’s proposed methods. Relying on its 2012 decision in Marcus v. BMW of North America LLC, the Court explained that “an essential pre-requisite 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,” and found that the proposed class was not sufficiently ascertainable without sales receipts or other sales records to identify consumers. Neither party disputed the fact that, due to the relatively low cost of the product, consumers were unlikely to have kept receipts or any other proof of purchase which would serve to identify them as members of the proposed class.

The Third Circuit’s decision is in line with a trend of class cert denials based on plaintiff’s failure to demonstrate that the proposed class is sufficiently ascertainable. However, Carrera may be the first to go so far as to suggest that without a receipt or other proof of purchase, class action plaintiffs may be out of luck entirely. Stay tuned to these pages to see whether Carrera will be followed in other circuits.


Want to talk advertising? We welcome your questions, ideas, and thoughts on our posts. Email or call us at lweinstein@proskauer.com /212-969-3240 or akaplan@proskauer.com /212-969-3671. We are editors of Proskauer on Advertising Law and partners in Proskauer’s False Advertising & Trademark practice.