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FOOD COURT REPORT: Food Manufacturer Defeats Class Certification in Labeling Claim Because Putative Class Lacked Ascertainability

Date: Nov 12, 2014

The Facts Of The Case

Gabriel Carerra brought a class action against Bayer Corporation and Bayer Healthcare.  Mr. Carrera argued that a dietary supplement, WeightSmart, falsely claimed that an ingredient enhanced metabolism.  Mr. Carerra sought to have his suit certified as a class on behalf of all persons who suffered damages as a result. The case was brought under the Florida Deceptive and Unfair Trade Practices Act.

Bayer challenged certification of the class.  Bayer argued that members of such a class are unascertainable on the basis that they are unlikely to have records of their purchase, or of the packaging for the product that they purchased.

Bayer pointed to the fact that Mr. Carerra himself did not recollect exactly which products he had purchased, and whether they were Bayer’s WeightSmart or a generic equivalent.

Mr. Carerra argued that self-certification should be sufficient to qualify a person as a class member.

What The Court Said

The Third Circuit noted that an essential prerequisite to certifying a class is that the class must be “currently and readily ascertainable.” This requirement eliminates a pre-certification inquiry that would be so burdensome that it would undo all of the efficiencies that class actions are designed to create.  Further, the court noted, this requirement protects absent class members because a proper notice can only be sent when a class is ascertainable.

The Third Circuit rejected Mr. Carerra’s contention that class suitability can be ascertained by taking affidavits of potential members.  The court found this method unsuitable because the defendant would not be able to challenge class membership. In addition, it rejected Mr. Carerra’s suggestion to look to pharmacy loyalty cards and online purchase records to ascertain class membership since these only reflected a fraction of all sales.

This decision is significant because it presents a critical opportunity for defeating class certification in claims of allegedly misbranded food and supplement products.

Presently, the Carerra decision reflects a potential split with other courts.  We anticipate that food and supplement manufacturers will cite to the Carerra decision, and we will follow how it is applied.

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