The U.S. Court of Appeals for the Third Circuit has denied a petition for rehearing en banc in a small-dollar consumer product class action. Depending on one’s perspective, this highly anticipated ruling either enforces the common-sense conclusion that a trial court must be able to identify the members of a certified class, or sounds the death knell for small-dollar consumer product class actions.

In Carrera v. Bayer Corp., the plaintiff brought a false advertising class action on behalf of all Florida purchasers of Bayer’s WeightSmart multivitamin, a small-dollar, over-the-counter product sold at various drugstore chains and supermarkets. Despite the difficulty in identifying the purchasers—Bayer has no record of actual purchasers, and receipts commonly are discarded—the trial court certified the class.

The court determined that class members could be ascertained based on loyalty card records, online sales, and, for the substantial remainder of consumers, affidavits. Following that decision, the Third Circuit decided Marcus v. BMW, in which the same ascertainability issue arose. The court cautioned against the use of affidavits, which it said amount to “no more than ascertaining by potential class members’ [say-so],” creating “serious due process implications.”

Based on its decision in Marcus, the Third Circuit unanimously reversed the class certification order in Carrera last August, concluding that there was no “reliable, administratively feasible method to determine class membership.” The court again rejected the use of affidavits to establish class membership, as the plaintiff presented no reliable way to screen out fraudulent affidavits.

Despite its uncontroversial conclusion—that a court must be able to ascertain the members of a certified class—the decision drew criticism from consumer groups for setting too high a bar for class certification in small-dollar consumer product class actions. The plaintiff filed a petition for rehearing en banc, which drew substantial amicus support and was pending for many months.

Last week, by a 9-4 vote, the Third Circuit denied the rehearing petition. The three members of the panel that rendered the court’s original opinion issued a short opinion concerning the denial of rehearing. Their opinion stressed that the plaintiff still has not demonstrated a reliable and feasible way to determine class membership, and it noted that the plaintiff still has an opportunity to present to the trial court a screening model for weeding out fraudulent affidavits.

Four judges, including the author of Marcus, issued a strong dissent from the denial of rehearing, concluding that Carrera “goes too far” in requiring proof of ascertainability. Despite acknowledging that “the ability to identify class members is a set piece for Rule 23 to work,” the dissenting opinion offers no concrete suggestions for satisfying the ascertainability requirement. Instead, the dissent simply concludes that potential class members should “not be made to suffer” when a defendant’s lack of records and business practices make ascertainability difficult. In the end, the dissent suggests that the Judicial Conference’s Committee on Rules of Practice and Procedure look into the matter.

The Carrera opinion has already been relied upon by numerous courts around the country, and it is likely that the Third Circuit's ascertainability analysis will continue to garner support and preclude class certification in many consumer cases.