As we've explained in a series of 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 told you about the plaintiff's petition for en banc hearing and Public Citizen's amicus brief in support of rehearing as well as three other amicus briefs from a group of law professors, Public Justice, and Angeion Group. The latter brief was particularly interesting. Angeion Group is a class-action administration company, and its brief said that the panel's decision misunderstood the ability of courts and claims administrators to root out fraud and inacurracy in class actions.
On November 26, Third Circuit ordered the defendants to respond to the rehearing request. Here's the defendants' response, which was filed a few minutes ago.
