Carrera v. Bayer Corp., No. 12-2621; Third Circuit; opinion by Scirica, U.S.C.J.; filed August 21, 2013. Before Judges Scirica, Smith and Chagares. On appeal from the District of New Jersey, No. 2-08-cv-04716. [Sat below: Judge Linares.] DDS No. 07-8-1414 [21 pp.]
Gabriel Carrera filed this class action against Bayer Corporation and Bayer Healthcare LLC, claiming that it falsely and deceptively advertised its product One-A-Day WeightSmart as a multivitamin and dietary supplement that had metabolism-enhancing effects. After the court denied certification as a class action under the New Jersey Consumer Fraud Act, Carrera moved to certify a Rule 23(b)(3) class of Florida consumers under the Florida Deceptive and Unfair Trade Practices Act. He proposed two ways to ascertain the class: (1) retailer records of online sales and sales made with store loyalty or rewards cards, and (2) affidavits of class members attesting they purchased WeightSmart. Bayer argued that the class members are not ascertainable.
