3rd Circuit Vacates Certification of Class on Ascertainability Grounds in Supplement Action

PHILADELPHIA — The 3rd Circuit U.S. Court of Appeals has vacated a lower court’s certification of a class of consumers who accuse Bayer Corp. of falsely advertising its One-A-Day WeightSmart vitamin, ruling that the class members cannot be ascertained from Bayer’s records.

The appellate court heavily relied on its recent decision in Marcus v. BMW of North America, LLC (687 F.3d 583 [3d Cir. 2012]), in which it held that “if class members cannot be ascertained from a defendant's records, there must be a 'a reliable, administratively feasible alternative.'” In Marcus, the court cautioned against “approving a method that would …