On June 18, the New Jersey Civil Justice Institute held a policy teleforum on the Third Circuit’s recent ruling in Carrera v. Bayer, which has the potential to curtail consumer class action litigation of dubious value. Jessica Miller, a partner at Skadden who co-authored an amicus brief in the Carrera case that the 3rd Circuit found persuasive, gave call participants an overview of the decision and then outlined some of the implications of the case.


Miller explained that the decision strengthened the standard of “ascertainability” – essentially, the feasibility and reliability of identifying the potential class members – necessary for a class action to be certified. The court made clear that defendants have a due process interest in the ascertainability of plaintiffs that cannot be ignored. According to Miller, this is important because there seems to be a sense in class action cases that you can ignore the regular rules. In Carrera, the court stepped back from that and affirmed that the regular rules still apply because the ultimate goal in a class action is efficient and just compensation, not social justice.


In the short term, the ruling means it will be more difficult to bring class actions in the Third Circuit when the class members are self-identifying as having bought a product. Carrera allows defendants to challenge each self-identified plaintiff to ensure that the defendant’s due process rights are not violated. This negates any efficiency that is achieved by having a class action, making classes consisting of self-identified plaintiffs much less desirable in the eyes of the courts and plaintiffs’ attorneys.


Courts in the Ninth Circuit have explicitly rejected the ruling in Carrera, and continue to certify classes of self-identifying plaintiffs, particularly those related to purchases of food items. Miller thinks the issue of ascertainability could end up being decided by the U.S. Supreme Court if the Ninth Circuit takes up one of the food law cases the lower federal courts are deciding and rules different from the Third Circuit, thus creating a circuit split.


NJCJI is monitoring this developing area of law, and will post updates on our blog as it develops.