GABRIEL JOSEPH CARRERA, on behalf of himself and all others similarly situated
BAYER CORPORATION; BAYER HEALTHCARE, LLC, Appellants *(Amended Pursuant to the Clerk's Order of July 5, 2012)
Argued April 16, 2013
On Appeal from the District Court for the District of New Jersey D.C. Civil No. 2-08-cv-04716 (Honorable Jose L. Linares)
Matthew R. Ford, Esq. Christopher D. Landgraff, Esq. Rebecca Weinstein Bacon, Esq. [ARGUED] Bartlit, Beck, Herman, Palenchar & Scott Counsel for Appellants
Caroline F. Bartlett, Esq., James E. Cecchi, Esq., Lindsey H. Taylor, Esq., Carella, Byrne, Cecchi, Olstein, Brody & Agnello, Joe R. Whatley, Jr., Esq. [ARGUED] Whatley, Drake & Kallas Counsel for Appellee
John Beisner, Esq., Counsel for Amicus Curiae
Before: SCIRICA, SMITH and CHAGARES, Circuit Judges
SCIRICA, Circuit Judge.
In this Fed.R.Civ.P. 23(f) appeal, Bayer Corporation and Bayer Healthcare contest the certification of a class of consumers who purchased Bayer's One-A-Day WeightSmart diet supplement in Florida. The sole issue on appeal is whether the class members are ascertainable. While this interlocutory appeal was pending, we decided Marcus v. BMW of North America, LLC, in which we held "[i]f class members are impossible to identify without extensive and individualized fact-finding or „mini-trials, ' then a class action is inappropriate." 687 F.3d 583, 593 (3d Cir. 2012). We explained that if class members cannot be ascertained from a defendant's records, there must be "a reliable, administratively feasible alternative, " but we cautioned "against approving a method that would amount to no more than ascertaining by potential class members' say so." Id. at 594. In light of Marcus, we will vacate the class certification order and remand.
Gabriel Carrera brings this class action against Bayer Corporation and Bayer Healthcare, LLC ("Bayer"), claiming that Bayer falsely and deceptively advertised its product One-A-Day WeightSmart. WeightSmart was promoted as a multivitamin and dietary supplement that had metabolism-enhancing effects. The recommended daily dose was one tablet and prices ranged from about $8.99 for fifty tablets to about $16.99 for one hundred tablets. Bayer sold WeightSmart in retail stores, such as CVS, until January 2007. Bayer did not sell it directly to consumers. Carrera alleges Bayer falsely claimed that WeightSmart enhanced metabolism by its inclusion of epigallocatechin gallate, a green tea extract.
Carrera initially sought to certify a nationwide class under Fed.R.Civ.P. 23(b)(3) bringing a claim under the New Jersey Consumer Fraud Act, as Bayer's headquarters is in New Jersey. The court denied certification, concluding that New Jersey law did not apply to out-of-state customers. This order is not before us on appeal.
Carrera then moved to certify a Rule 23(b)(3) class of Florida consumers under the Florida Deceptive and Unfair Trade Practices Act. One of Bayer's challenges to certification, and the issue on this appeal, is whether the class members are ascertainable. In this case, there is no dispute that class members are unlikely to have documentary proof of purchase, such as packaging or receipts. And Bayer has no list of purchasers because, as noted, it did not sell WeightSmart directly to consumers.
Carrera advanced two ways to ascertain the class: first, by retailer records of online sales and sales made with store loyalty or rewards cards; second, by affidavits of class members, attesting they purchased WeightSmart and stating the amount they purchased. Bayer challenged this latter method on the ground that memories of putative class members will be unreliable. Bayer argued that, in Carrera's own deposition testimony, he failed to remember when he purchased WeightSmart and that he confused it with WeightSmart Advanced and other generic or similar products (none of which are part of this litigation). In response, Carrera produced a declaration of James Prutsman, who works for a company that verifies and processes class settlement claims, in which Prutsman stated there are ways to verify the types of affidavits at issue here and screen out fraudulent claims.
The court certified the class, defined as all persons who purchased WeightSmart in Florida. It characterized the issue of ascertainability as one of manageability, stating "„speculative problems with case management'" are insufficient to prevent class certification. Carrera v. Bayer Corp., Civ. A. No. 08-4716, 2011 WL 5878376, at *4 (D.N.J. Nov. 22, 2011) (quoting Klay v. Humana, Inc., 382 F.3d 1241, 1272-73 (11th Cir. 2004)). The court concluded Carrera had satisfied his burden, noting "that the claims involved will be relatively small and Plaintiff points to methods to verify claims." Id. Bayer appealed. It contends Carrera has failed to demonstrate the class is ascertainable because there is no evidence that any retailer records show who purchased WeightSmart. Bayer also argues that the use of unverifiable affidavits to ascertain class members fails to comply with Rule 23 and violates its rights under the due process clause.
The District Court had jurisdiction under 28 U.S.C. § 1332(d). We have jurisdiction under 28 U.S.C. § 1292(e) and Fed.R.Civ.P. 23(f). "We review a class certification order for abuse of discretion, which occurs if the district court's decision rests upon a clearly erroneous finding of fact, an errant conclusion of law or an improper application of law to fact." In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 312 (3d Cir. 2008) (quotation omitted). "Whether an ...