Carrera v. Bayer Corporation: Third Circuit Vacates Class Certification Order On Ascertainability Grounds In Consumer False Advertising Case

The Third Circuit Circuit's recent decision in Carrera v. Bayer Corporation, No. 12-2621 (3d Cir. Aug. 21, 2013), could have a significant impact on false advertising class actions involving the purchase of consumer products such as dietary supplements, foods and beverages, and cosmetics, where consumers generally do not save receipts or packaging, and manufacturers do not have lists of individuals who purchased those products.  In Carrea, the Third Circuit, relying heavily on its earlier decision in Marcus v. BMW of North America, LLC, 687 F.3d 583 (3d Cir. 2012), vacated the district court's order certifying a class of consumers who purchased Bayer's One-A-Day WeightSmart multivitamin and dietary supplement in Florida (which plaintiff alleged was deceptively advertised), finding that the class members were not ascertainable.  The Third Circuit noted that in Marcus, it "explained that if class members cannot be ascertained from a defendant's records, there must be a