Gabriel Carrera v. Bayer Corp
2013 U.S. App. LEXIS 17479
| 3rd Cir. | 2013Background
- Plaintiff Gabriel Carrera sued Bayer over advertising for One-A-Day WeightSmart, alleging deceptive claims that the product enhanced metabolism; product sold through retailers (not directly by Bayer) in Florida (Dec. 2003–Jan. 2007).
- Carrera sought certification of a Rule 23(b)(3) class of all Florida purchasers of WeightSmart; district court certified the class as "all persons who purchased WeightSmart in Florida."
- Class members are unlikely to have receipts or packaging; Bayer has no purchaser list because it did not sell directly to consumers.
- Carrera proposed two ascertainment methods: (1) retailer records (online sales and loyalty-card data) and (2) sworn affidavits from putative class members, supported by a declarations from a claims administrator describing screening techniques.
- District court accepted Carrera's proposals and certified the class; Bayer appealed solely on ascertainability grounds. The Third Circuit reviews certification for abuse of discretion and applies the rigorous analysis required by Rule 23.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the proposed class is objectively ascertainable | Carrera: class can be identified via retailer loyalty/online records and, where records lack, via affidavits screened by a claims-admin model | Bayer: no evidence retailers have usable records; affidavits alone are unreliable and raise due-process concerns | Vacated certification — Carrera failed to meet ascertainability burden on the evidence presented |
| Whether retailer records can identify purchasers | Carrera: retailers (e.g., CVS ExtraCare, cvs.com) can identify purchasers as in FTC settlement examples | Bayer: FTC settlement is inapposite; no proof retailers retained relevant records or that records would identify purchasers | Insufficient evidence that retailer records exist or would reliably identify class members |
| Whether unsworn or sworn affidavits can suffice to ascertain class membership | Carrera: small claim size reduces fraud risk; a claims-admin screening model (Prutsman) can detect fraud and validate affidavits | Bayer: affidavits without corroboration amount to "say so"; screening declaration is generic, settlement-focused, and unproven for certification | Affidavits alone are inadequate; Prutsman declaration is not specific or demonstrated to be reliable for certification |
| Whether district court should allow further development | Carrera: should be permitted to rely on proposed methods; certification appropriate now | Bayer: methods unproven; certification premature | Remand: vacate certification and permit limited discovery and an opportunity for Carrera to present a case-specific, demonstrably reliable screening model or other ascertainment evidence |
Key Cases Cited
- Marcus v. BMW of North America, LLC, 687 F.3d 583 (3d Cir. 2012) (ascertainability requires objective, administratively feasible means to identify class members; affidavits alone may be insufficient)
- Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (U.S. 2011) (district courts must perform a rigorous analysis of Rule 23 prerequisites)
- In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305 (3d Cir. 2008) (standard of review and need for rigorous, evidence-based Rule 23 analysis)
- Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147 (U.S. 1982) (class certification must resolve common issues suitable for class treatment)