Third Circuit Raises the Bar on the Ascertainability Requirement in Class Litigation


An important, and often overlooked, arrow in the quiver of any company defending itself against potentially devastating class litigation is the implicit requirement of “ascertainability.” Before a class can be certified, a plaintiff must demonstrate by a preponderance of the evidence that the members of the class are currently and readily identifiable based on objective criteria. Unless class members can be identified without “extensive and individualized fact-finding or mini trials,” then a class action is inappropriate.

Recently, in Carrera v. Bayer Corp., 2013 WL 4437225 (3d Cir. Aug. 21, 2013), the Third Circuit raised the bar on the ascertainability requirement in a case that could have sweeping implications on consumer-rights claims and other claims involving relatively inexpensive purchases. In Carrera, the named plaintiff brought a class action against Bayer Corporation and Bayer Healthcare claiming that Bayer deceptively advertised its product One-A-Day WeightSmart by falsely claiming that it enhanced metabolism. Bayer sold WeightSmart in retail stores, such as CVS, but it did not sell the product directly to consumers.

At issue was the ascertainability of the class - whether members of the putative class, limited to those individuals who purchased WeightSmart, could be identified. The plaintiff conceded that class members were unlikely to have documentary proof of purchase, such as packaging or receipts. And because Bayer did not sell WeightSmart directly to consumers, it had no list of purchasers. The plaintiff argued that the class could nevertheless be ascertained either by retailer records of online sales and sales made with store loyalty cards or through affidavits of class members, attesting that they had, in fact, purchased the product. The trial court agreed and certified the class, concluding that ascertainability was manageable in light of the relatively small amount of the claims and the plaintiff’s proposed methods for verifying the claims.

The Third Circuit reversed, holding that if class members cannot be ascertained from a defendant’s records, there must be a reliable, administratively feasible alternative - and affidavits from absent members of the putative class are not enough. The court reasoned that a defendant in class litigation “has a similar, if not the same, due process right to challenge the proof used to demonstrate class membership as it does to challenge the elements of a plaintiff’s claim.” Because Bayer would not have the opportunity to challenge the affidavits, the affidavits could not satisfy the plaintiff’s burden to show the class was ascertainable. The court further found that the plaintiff had advanced no reliable model for screening out fraudulent claims. The plaintiff’s proposal to use a company specializing in verification and processing of class settlement claims to weed out fraudulent claims did nothing to prove that the affidavits would be reliable. The court also rejected the argument that Bayer’s liability would be fixed at $14 million, regardless of the number of fraudulent claims filed, because the ascertainability requirement also serves to protect absent class members. The court found that it would be unfair to absent class members if there was a significant likelihood that their recovery would be diluted by fraudulent or inaccurate claims.

Why This is Important?

The decision could have a profound and sweeping effect on smaller, relatively lower value claims, including many consumer claims. For most inexpensive purchases, consumers do not keep their receipt or other evidence of the purchase. Because putative class members cannot rely on their word as proof of their purchase, it will be impossible in many instances for them to prove that they are, in fact, members of the class. In many instances, this will render the case inappropriate for class treatment.

More broadly, the Carrera decision highlights the growing trend of narrowing the availability of the class mechanism. As the Supreme Court recently reiterated in Comcast Corp. v. Behrend, and Wal-Mart Stores, Inc. v. Dukes, class actions are the exception to the usual rule that litigation is between individual named parties only. Carrera can be read as the most recent implementation of that philosophy.

If you have questions about this decision or securities-related litigation in general, please contact one of the Securities Class Action Defense and Shareholder Litigation attorneys listed below: 

Nicholas Even

Kit Addleman


Thad Behrens


Daniel H. Gold

Carrie L. Huff


Odean Volker


Richard A. Ripley


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