United States: Third Circuit Rejects Effort At End Run Around The Ascertainability Requirement

We previously wrote about the Third Circuit's decision in Carrera v. Bayer Corp., which reversed a district court's class-certification order because there was no reliable way to ascertain class membership—indeed, no way to identify who was a member of the class aside from a class member's own say-so. Last week, the full Third Circuit denied (pdf) the plaintiff's request to rehear the case en banc over the dissent of four judges. The clear message of Carrera is that when plaintiffs file class actions that have no hope of compensating class members for alleged wrongs because the class members can't be found, courts should refuse to let these actions proceed.

As we discuss below, the denial of rehearing is significant in itself, given the concerted efforts by Carrera and his amici to draw attention to the case. But what might be most significant about this latest set of opinions is what even the dissenting judges did not say.

First, here's some brief background about the case. Carrera filed a class action against Bayer alleging that the company overstated the health benefits of its One-A-Day WeightSmart multivitamin. He sought to represent a putative class of all consumers who ever purchased WeightSmart in Florida. The district court granted class certification, but the Third Circuit granted Bayer's petition for review under Rule 23(f) and reversed.

The problem for Carrera, the Third Circuit explained, is that there is no reliable way to ascertain who the class members are. WeightSmart was sold at CVS and other retail stores throughout the state, rather than purchased directly from Bayer, so the company did not—and could not—have a "master list" of customers who bought the product. There's no indication that the retailers kept records of which customers purchased WeightSmart, and even if some purchasers might be identified through loyalty cards or online purchases, that list would be grossly incomplete. Few if any customers are likely to have saved receipts or proofs of purchase documenting each of their vitamin purchases. And Bayer stopped selling WeightSmart in Florida in January 2007, but the class was not certified until November 2011, so it is especially unlikely that reliable records exist for purchases made many years ago.

Because there was no reliable way to determine the identities of putative class members, the Third Circuit held that class certification was improper. Although ascertainability is not among the explicit requirements listed in Rule 23(a), courts have uniformly recognized that ascertainability is an implicit requirement for certifying a class. See, e.g., Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 592-94 (3d Cir. 2012); Oshana v. Coca-Cola Co., 472 F.3d 506, 513-14 (7th Cir. 2006); Miles v. Merrill Lynch & Co. (In re Initial Pub. Offering Sec. Litig.), 471 F.3d 24, 30, 44-45 (2d Cir. 2006); DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970).

Recognizing this difficulty, Carrera's petition for rehearing en banc (pdf) essentially challenged the premise that ascertainability should be taken seriously. In Carrera's view, it's apparently not necessary for a plaintiff bringing a consumer class action to be able to identify who the class members actually are. Instead, Carrera proposed that the defendant's aggregate liability could be measured based on total sales or revenues (without knowing whom the product was sold to); any class members capable of proving their purchases would be allowed to submit a claim and receive payment; and then the remaining amount—belonging to class members who could not be identified—would escheat to a state unclaimed-property fund (minus a cut for the lawyers). Under this approach, Carrera argued, the absence of any reliable way to identify class members has no bearing on Bayer, because its total liability would be the same no matter how the damages are ultimately distributed. And as for the fact that few class members would be compensated directly by a judgment or settlement in the case, Carrera viewed this to be of no moment at all.

Four judges dissented from the full court's decision to deny the petition, but for a very different reason. According to the dissent, the ascertainability requirement could be satisfied in this case because some class members "could be determined by records from loyalty card programs and online purchasing receipts" and "the remaining may be found through affidavits" averring (without actual proof) that the signer purchased the product. But the en banc court was correct to dismiss that argument and deny rehearing. Rule 23 requires that a plaintiff seeking class certification "affirmatively demonstrate his compliance with the Rule" and that courts conduct a "rigorous analysis" before finding the requirements satisfied. See, e.g., Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011). Carrera did not demonstrate that any retailer records capable of identifying class members even exist, much less that they are sufficiently comprehensive to ascertain class membership. And allowing putative class members to assert eligibility through conclusory affidavits, rather than through actual evidence, cannot satisfy the ascertainability requirement, much less comply with due process, because there would be no meaningful way to verify whether each claim is truthful and accurate or for the defendant to challenge those that are not.

What is most significant about the denial of rehearing, however, is that none of the judges accepted Carrera's argument that it's unnecessary to  show that the vast majority of class members can be identified for class certification. This rejection of Carrera's approach puts the Third Circuit in good company: Numerous courts have held the inability to prove individual damages cannot be overcome (at least in a litigated class action, as opposed to a settlement) by calculating damages an aggregate basis—an approach sometimes referred to as "fluid recovery"—and proposing a cy pres distribution of unclaimed funds. See, e.g., McLaughlin v. Am. Tobacco Co., 522 F.3d 215, 232 (2d Cir. 2008); Windham v. Am. Brands, Inc., 565 F.2d 59, 72 (4th Cir. 1977); In re Hotel Tel. Charges, 500 F.2d 86, 91 (9th Cir. 1974).

Had Carrera's approach been accepted, it would have marked a radical change in how Rule 23 is supposed to work. At bottom, Rule 23 is simply an aggregation device that allows similarly situated plaintiffs to obtain redress through a single lawsuit, rather than requiring each individual to bring a separate suit. A Rule 23 class action is the sum of the individual claims within it—nothing more. If class members can't prove the elements of their individual claims, then they can't use the class-action device to skirt those requirements. To do so would violate the Rules Enabling Act, which forbids interpreting Rule 23 to abridge, enlarge, or modify any substantive right. See Wal-Mart, 131 S. Ct. at 2561; Klier v. Elf Atochem N. Am., Inc., 658 F.3d 468, 474 (5th Cir. 2011).

Underlying Carrera's argument—and necessarily rejected by the Third Circuit—is an approach that sees plaintiffs' lawyers not as attorneys seeking redress for their clients, but instead as free-roaming attorneys general with self-appointed power to prosecute purported violations of the law. Requiring proof of damages for each class member, Carrera argues, might not fully punish or deter alleged misconduct. But private lawyers are empowered to bring claims and seek redress only to their extent that their clients can prove a right to relief. If Carrera were right that all that matters is aggregate damages and deterrence, there would be no need for named plaintiffs at all.

Of course, as a practical matter, in many of today's class actions the plaintiffs' lawyers are running the show and recruiting clients, not the other way around. But as far as the law is concerned, lawyers still can't recover damages without identifying the individuals entitled to that relief. Nothing in Rule 23 allows class actions to take on a life of their own and demand damages not owed to any particular class member. The Third Circuit was right to reject Carrera's "demand damages first, identify plaintiffs later (or never at all)" approach. Other courts should do the same—as indeed many already have.

Visit us at www.classdefenseblog.com

Visit us at mayerbrown.com

Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe – Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

© Copyright 2014. The Mayer Brown Practices. All rights reserved.

This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.