Rough Justice Is Not Justice: Public Citizen’s Challenge to Third Circuit Ascertainability Rule

As we discussed recently, successful class certification in the Third Circuit requires a showing that the proposed class is ascertainable in an objective, reliable, and administratively feasible way.  Several recent decisions from the Third Circuit have reaffirmed that, if the proposed class cannot be objectively defined, and class membership cannot be reliably and feasibly determined, then class certification is not appropriate.

In one of those recent cases – Carrera v. Bayer Corp., 2013 U.S. App. Lexis 17479 August 21, 2013) – Public Citizen has filed an amicus brief in support of the plaintiff’s petition for rehearing or rehearing en banc that raises some interesting questions.

As Public Citizen rightly recognizes, the ascertainability rule in the Third Circuit can be an impediment to class certification.  Focusing on what it evidently believes is the likelihood that this rule will allow defendants whose “wrongful conduct has harmed many people and resulted in injuries that are large in the aggregate, but notcost effective to redress individually” to escape being held accountable, Public Citizen argues that the Third Circuit’s rule substitutes “no justice” for “rough justice” in a way that Public Citizen, at least, thinks is unfair.

Carrera involved a claim that Bayer falsely and deceptively advertised its product One-A-Day WeightSmart by claiming that it enhanced metabolism.  Carrera sought to certify a class of Florida purchasers of the product, but the Third Circuit reversed, finding that identification of Florida consumers who purchased the product (who were unlikely to have retained sales receipts) could not be reliably accomplished through retail purchase records, nor would the use of affidavits by purported class members allow Bayer to challenge class membership.  According to the Third Circuit, the risk that the class would include fraudulent or inaccurate membership – and thus the risk that fraudulent or inappropriate claims would be paid – was damaging both to absent class members and to Bayer.

Public Citizen, in its brief, wholly eschews any discussion of whether the inclusion of fraudulent or inaccurate class members would pose any harm to class action defendants such as Bayer.  Rather, Public Citizen argues that, while the inclusion of fraudulent or inaccurate class members may result in the payment of fraudulent or inappropriate claims – which would, in turn, reduce the value of each individual paid claim – this kind of “rough justice” is preferable to no class certification, which Public Citizen argues would mean “no justice” (i.e., no claims paid at all).

In making this argument, Public Citizen assumes that rational class members would choose to receive $.80 on the dollar, with the knowledge that some undeserving class members would also receive this sum.  But Public Citizen offers nothing to support this position except its own view of disinterested economic self-rationalism.     Diluting the claim of a deserving class member  is wrong. So too is forcing a defendant to compensate an undeserving claimant. Public Citizen’s position reflects a classic “ends-justify-the-means” logic that would never be confused for “justice” – rough or otherwise – in an individual action. Why should a collective action operate under different notions of justice than individual actions?

Josef Stalin is reported to have excused the brutality of his collective farming campaign with the comment,  “you can’t make an omelet without breaking a few eggs.”  Here, in its effort to make a more consumer-friendly omelet that rejects the Third Circuit’s ascertainability rule for class certification, Public Citizen appears willing to break the eggs of those absent class members who might disagree with its “‘rough justice’ is better than ‘no justice’” argument.  The kitchen, of course, belongs to the Third Circuit, and all those involved in class action litigation will no doubt await with interest what the Third Circuit elects to do.

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