by Brian Wolfman
As we've explained in a series of recent posts, in Carrera v. Bayer, the Third Circuit reversed a grant of class certification on the ground that the class wasn't "ascertainable." Among other things, the panel said that the class of purchasers of an over-the-counter weight-loss product had not shown that it would be able to screen out "fraudulent or inaccurate claims"–claims that would not have been made until after judgment or settlement. Until the Carrera decision, plainitiffs have not been required to make that kind of showing at the class-certification stage.
We previously told you about the plaintiff's petition for en banc hearing and Public Citizen's amicus brief in support of rehearing. Last Friday, three more amicus briefs were filed, one from a group of law professors, another from Public Justice, and another from Angeion Group. The latter brief is particularly interesting. Angeion Group is a class-action administration company, and its brief says that the panel's decision misunderstood the ability of courts and claims administrators to root out fraud and inacurracy in class actions.