New Third Circuit decision toughens standard for class certification when information about individual consumers is lacking

A recent decision from the US Court of Appeals for the Third Circuit has erected a substantial barrier to classes being certified in consumer products cases, especially cases involving products sold to consumers through third parties such as retailers in which consumers do not routinely provide contact information at the point of sale.

On 21 August 2013, in Carrera v Bayer Corp, the Third Circuit vacated the certification of a Rule 23(b)(3) class of purchasers of a Bayer diet supplement. No. 12-2621, 2013 WL 4437225 (3d. Cir. Aug. 21, 2013). Bayer sold the supplement through retail stores rather than directly to consumers and had no records of the consumers who purchased the product. It challenged the ascertainability of the class, arguing that the members of the class could not be reliably identified because Bayer had no list of the ultimate purchasers of the supplement and purchasers of such a small consumer item would likely would discarded any proof of purchase…

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