PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12

- 2621

___________

GABRIEL JOSEPH CARRERA, on behalf of himself and all others similarly situated

v.

BAYER CORPORATION; BAYER HEALTHCARE, LLC., Appellants

*(Amended Pursuant to the Clerk‟s Order of July 5, 2012)

_______________________

On Appeal from the District Court for the District of New Jersey

D.C. Civil No. 2

- 08

- cv

- 04716 (Honorable Jose L. Linares)

____________ __

Argued April 16, 2013

Before: SCIRICA, SMITH and CHAGARES, Circuit Judges

(Filed: August 21, 2013 )2 Matthew R. Ford, Esq. Christopher D. Landgraff, Esq. Rebecca Weinstein Bacon, Esq. [ARGUED] Bartlit, Beck, Herman, Palenchar & Scott

54 West Hubbard S treet
Room 300 Chicago, IL 60654

Counsel for Appellants

Caroline F. Bartlett, Esq. Patton Boggs

One Riverfront Plaza

6 th Floor Newark, NJ 07102

James E. Cecchi, Esq. Lindsey H. Taylor, Esq. Carella, Byrne, Cecchi, Olstein, Brody & Agnello

5 Becker F arm Road Roseland, NJ 07068

Joe R. Whatley, Jr., Esq. [ARGUED] Whatley, Drake & Kallas 1540 Broadway

37 th Floor New York, NY 10036

Counsel for Appellee

John Beisner, Esq. Skaden, Arps, Slate, Meagher & Flom 1440 New York Avenue, N.W.3 Washington, DC 20005

Counsel for Amicus Curiae

_________________

OPINION OF THE COURT

_________________

SCIRICA, Circuit Judge

.

In this Fed. R. Civ. P. 23(f) appeal, Bayer Corporation and Bayer Healthcare contest the

certification of a class of consumers who purch ased Bayer‟s One

- A

- Day WeightSmart diet supplement in

Florida . The sole issue on appeal is whether the class members are ascertainable. While this interlocutory appeal was pending, we decided Marcus v. BMW of

N orth America , LLC

, in which we held “[i] f clas s members are impossible to identify without extensive

and individualized fact

- finding or „mini

- trials,‟ then a class action is inappropriate.” 687 F.3d 583, 593 (3d Cir. 2012). We explained that if class members cannot

be ascertained from a defendant‟s re cords, there must be “a reliable, administratively feasible alternative,” but we cautioned “against approving a method that

would amount to no more than ascertai ning by potential class members‟ say so.” Id. at 594. In light of

Marcus , we will vacate the cl ass certification order and

remand

.

I.4 Gabriel Carrera brings this class action against Bayer Corporation and Bayer Healthcare, LLC (“Bayer”), claiming that Bayer fal sely and deceptively advertised its product One

A

- Day WeightSmart. WeightSmart was promo ted as a multivitamin and dietary supplement that had metabolism

enhancing effects. The recommended daily dose was one tablet and prices ranged from about $8.99 for fifty tablets to about $16.99 for one hundred tablets. Bayer sold WeightSmart in retail sto res, such as CVS

, until January 2007. Bayer did not sell it directly to consumers. Carrera alleges Bayer falsely claimed that WeightSmart enhanced metabolism by its inclusion of e pigallocatechin gallate, a
green tea extract.

Carrera initially sought to ce rtify a nationwide class

under Fed. R. Civ. P. 23(b)(3) bringing a claim under the New Jersey Consumer Fraud Act, as Bayer‟s headquarters is in New Jersey. The court denied certification, concluding that New Jersey law did not apply to out

- of

- state custome rs. This

order is not before us on appeal.

Carrera then moved to certify a Rule 23(b)(3) class of Florida consumers under the Florida Deceptive and Unfair Trade Practices Act. One of Bayer‟s challenges to certification, and the issue on this appeal, is w hether the class

members are ascertainable. In this case

, there is no dispute that class members are unlikely to have documentary proof of purchase , such as packaging or receipts. And Bayer has no list of purchasers because, as noted, it did not sell Weigh tSmart directly to consumers

.

Carrera advanced two ways to ascertain the class: f irst, by retailer records of online sales and sales made wit h store5 loyalty or rewards card s ; s econd, by affidavits o f class members, attesting they purchased WeightSmart a nd stating the amount they purchased. Bayer challenged this latter method on the ground that memories of putative class

members will be unreliable. Bayer argued that, in Carrera‟s own deposition testimony, he failed to remembe r when he purchased WeightSmar t and that he confused it with WeightSmart Advanced and other generic or similar products (none of which are part of this litigation) . In response, Carrera produced a declaration of James Prutsman, who works for a company that verifies and processes class settlement claims, in which Prutsman stated there are ways to verify the types of

affidavits at issue here and screen out fraudulent claims.

The court certified the class , defined as all persons who purchased WeightSmart in Florida

. 1 It characterized the issue of ascertainability as one o f manageability, stating

“„ speculative problems with case management ‟” are insufficient to prevent class certification. Carrera v. Bayer Corp. , Civ. A. No. 08

- 4716, 2011 WL 5878376, at *4 (D.N.J. Nov. 22, 2011) (quoting Klay v. Humana, Inc. , 382 F.3d 1241, 1272

- 73 (11th Cir. 2004)). The court concluded Carrera had satisfied his burden, noting “that the claims involved will be relatively small and Plaintiff points to methods to verify
claims.” Id. B ayer appealed. It conten ds Carrera has failed to

demonstrate the class is ascertainable because there is no evidence that any retailer records show wh o purchased WeightSmart. Bayer also argues that the use of unverifiable

affidavits to ascertain class members fails to comply with

1 The class definition does not include a class period. Bayer sold WeightSmart from December 2003 through January

2007.6 Rule 23 and violates its rights under the due process clause.

II.

The District Court had jurisdiction under 28 U.S.C. § 1332(d). We have jurisdiction under 28 U.S.C. § 1292(e) and Fed. R. Civ. P. 23(f). “We review a class certification order

for abuse of discretion, which occurs if the district court‟s decision rests upon a clearly erroneous finding of fact, an errant conclusion of law or an improper application of law to
fact.” In re Hydrogen Peroxide Antitrust Litig. , 552 F.3d 305, 312 (3d Cir. 2008) (q uotation omitted). “Whether an incorrect legal standard has been used is an issue of law to be reviewed

de novo .” Id. (quotation omitted).

III.

In Marcus

, we explained the concept of ascertainability at length for the first time . 687 F.3d at 592

- 95

. The c laim in Marcus was that Bridgestone run

- flat tires (“RFTs”) were defective because they w ere highly susceptible to flats; could only be replaced, not repaired; and were highly priced. Id. at 588. The district court certified a Rule 23(b)(3) class consistin g of “any and all current and former owners and lessees of 2006, 2007, 2008, and 2009 BMW vehicles equipped with run

- flat tires manufactured by Bridgestone . . . and sold or leased in New Jersey whose T ires have gone flat and been replaced.” Id. at 590 (qu otation and

alterations omitted). The defendants appealed

, and we vacated the order certifying the class

.

Before turning to the explicit requirements of Rule 23

in Marcus

, we add ressed two “preliminary matters ” : first,7 whether the class was clearly defin ed, and second, “whether the class must be (and, if so, is in fact) objectively
ascertainable.” Id

. at 591. We concluded the class was not clearly defined. At the least , the definition of the c lass was

broader than intended and did not define the claims, i ssues, or defenses to be treated on a class

- wide basis. Id. at 592. Accordingly, we remanded the case for clarification of the

class definition.

We then addressed ascertainability. We began by stating, “[m]any courts and commentators have recognized

that an essential prerequisite of a class action, at least with respect to actions under Rule 23(b)(3), is that the class must be currently and readily ascertainable based on objective
criteria.” Id. at 592

- 93 ( citing cases ). “If class members are impossible t o identify without extensive and individualized

fact

- finding or „mini

- trials,‟ then a class action i s inappropriate.” Id. at 593. We noted

, “[s]ome courts have held that where nothing in company databases shows or could

show whether individuals should be i ncluded in the proposed class, the class definition fails.” Id. (cit ing cases ).

We then explained the

ascertainability requirement serves several important objectives. First, it eliminates serious administrative burdens that are incongruous

with the ef

ficiencies expected in a class action by insisting on the easy identification of class members. Second, it protects absent class members by facilitating the best notice practicable under Rule 23(c)(2) in a Rule 23(b)(3) action. Third, it protects defendant s by8 ensuring that those persons who will be bound by the final judgment are clearly identifiable.

Id. (citations and quotations omitted).

We set forth why t he “proposed class action raise[d] serious ascertainability issues .” Id. Defendant BMW explained that it could not determine by its records which

vehicles fit the definition of the class because it did not keep

record s of which cars go t fitted with Bridgestone RFTs, because some customers may have changed tires (of which

BWM had no record), and becau se BMW would not have

know n which customers experienced flat tires. Id. at 593

- 94.

We stated that if plaintiff were to attempt to re

- certify a class on remand, the court “must resolve the critical issue of
whether the defendants‟ records can ascertain clas s members and, if not, whether there is a reliable, administratively
feasible alternative.” Id. at 594. We c autioned “against approving a method that would amount to no more than ascertaining by potential class members‟ say so. For example, simply having p otential class members submit affidavits that their Bridgestone RFTs have gone flat and been replaced may not be proper or just.” Id. (quotat ion omitted). “Forcing

B M W and Bridgestone to accept as true absent persons‟ declarations that they are members of the class, without further indicia of reliability, would have serious due process implication s .” Id.

IV.

A.

“A party seeking class certification must affirmatively9 demonstrate his compliance with” Rule 23. Wal

- Mart Stores,

Inc. v. Dukes , 131 S. Ct. 2541, 2551 (2011). “C lass certification is proper only „if the trial court is satisfied, after a rigorous analysis, that the prerequisites‟ of Rule 23 are

met.” Hydrogen Peroxide

, 552 F.3d at 309 (quoting Gen. Tel. Co. of Sw. v. Falcon , 457 U.S. 147, 161 (1982) ). “Frequently that „rigorous analysis‟ will entail some overlap w ith the merits of the plaintiff‟ s underlying claim. That cannot be helped. „[T]he class determination generally involves considerations that are enmeshed in the factual and legal issues comp rising the plaintiff ‟ s cause of action.‟” Dukes , 131

S. Ct. at 2551

- 52 (alteration in original) (quoting Falcon , 457 U.S. at 160). “Factual determinations necessary to make Rule 23 findings must be made by a preponderance of the
evidence.” Hydrogen Peroxid e , 552 F.3d at 320.

T hese same standards apply to the question of ascertainability. Class ascertainability is “an essential prerequisite of a class action, at least with respect to actions

under Rule 23(b)(3) .” Marcus , 687 F.3d at 592

- 93. “[ T ] here

is „ no reason to doubt‟” that the “rigorous analysis” requirement “„applies with equal force to all Rule 23 requirements.‟” Hydrogen Peroxide , 552 F.3 d at 309 n.5 (quoting In re Initial Pub. Offering Sec

. Litig. , 471 F.3d 24, 33 n.3 (2d Cir. 2006 ) ). Accordingly, a plaintiff must show, by a preponderance of the evidence, that the class is “currently and readily ascertainable based on objective criteria,”

Marcus , 687 F.3d at 593 , and a trial court must undertake a rigorous analysis of the evidence to determine if t he standard

is met. “A party‟s assurance to the court that it intends or plans to meet the requirements [of Rule 23] is insufficient.” Hydrogen Peroxide , 552 F.3d at 318. A plaintiff may not10 merely propose a method of ascertaining a class without any

evi dentiary support that the method will be successful. “„ A

critical need ‟ ” of the trial court at certification “„ is to

determine how the case will be tried, ‟ ” i d. at 319 (quoting Fed. R. Civ. P. 23 advisory comm ittee‟s note, 2003 Amendments), including how t he class is to be ascertained.

B.

Ascertainability mandates a rigorous approa ch at the

outset because of the key roles it plays as part of a Rule 23(b)(3) class action lawsuit. First, at the commencement of a class action, ascertainability and a clear cla ss definition allow potential class members to identify themselves for purposes of opting out of a class . Second, it ensures that a defendant‟s rights are protected by the class action mechanism. Third, it

ensures that the parties can identify class member s in a

manner consistent with the efficiencies of a class action.

“„[T]he class

- action device saves the resources of both the courts and the parties by permitting an issue potentially affecting every [class member] to be litigated in an

economical fashio n under Rule 23.‟” Falcon , 457 U.S. at 155 (second alteration in original) (quoting Califano v. Yamasaki

, 442 U.S. 682, 701 (1979)). If a class cannot be ascertained in an economical and “administratively feasible” manner,

Marcus , 687 F.3d at 594, signific ant benefits of a class action

are lost. See id. at 593 (explaining ascertainability “eliminates serious administrative burdens that are incongruous with the efficiencies expected in a class action” (quotation omitted)). Accordingly, a trial court should e nsure that class members
can be identified “without extensive and individualized fact

finding or „mini

- trials,‟” id. , a determination which must be11 made at the class certification stage.

I n this case, the ascertainability question is whether

each class m ember purchase d WeightSmart in Florida . If this

were an individual claim, a plaintiff would have to prove at trial he purchased WeightSmart. A defendant in a class action has a due process right to raise individual challenges and defenses to claims, and a class action cannot be certified in a way that eviscerates this right or masks individual issues. See McLaughlin v. Am. Tobacco Co. , 522 F.3d 215, 23 1

- 3 2 (2d Cir. 2008) (rejecting a “fluid recovery” method of determining individual damages, in which aggreg ate damages

would be based on estimates of the number of defrauded class

members and their average loss)

, abrogated on other grounds by Bridge v. Phoenix Bond & Indem. Co. , 553 U.S. 639 (2008) ; see also Dukes , 131 S. Ct. at 2561 (rejecting a method

of clas s certification in which a sample set of class members would be used to extrapolate average damages). A defendant has a similar, if not the same, due process right to challenge the proof used to demonstrate class membership as it does to challenge the elem ents of a plaintiff‟s claim

. See Marcus , 68 7 F.3d at 594 (“Forcing BMW and Bridgestone to accept as true absent persons‟ declarations that they are members of the class, without further indicia of reliability, would have serious due process implications.”)

. Ascertainability provides due process by requiring that a defendant be able to test the reliability of the evidence submitted to prove class membership.

The method of determining whether someone is in the

class must be “administratively feasible.” Id. A plaintiff does not satisfy the ascertainability requirement if individualized

fact

- finding or mini

- trials will be required to prove class12 membership. Id. at 593. “ Administrative feasibility means that identifying class members is a manageable process tha t does not require much, if any, individual factual inquiry.”

William B. Rubenstein & Alba Conte

, Newberg on Class

Actions § 3:3 (5 th ed. 2011 ); see also Bakalar v. Vavra , 237 F.R.D. 59, 64 (S.D.N.Y. 2006) (“Class membership must be readily identifiable su ch that a court can determine who is in the class and bound by its ruling without engaging in

numerous fact

- intensive inquiries.”).

The type of challenge to the reliability of evidence that is required will vary based on the nature of the evidence. For

ex ample, if Carrera produces retailer records that purport to list purchasers of WeightSmart, Bayer can challenge the reliability of those records, perhaps by deposing a corporate

record

- keeper. 2 In sum, to satisfy ascertainability as it relates to proof of class membership, the plaintiff must demonstrate his purported method for ascertaining class members is reliable and administratively feasible, and permits a defendant to challenge the evidence used to prove class membership.

V.

Carrera contends the clas s is ascertainable. He points to two types of evidence that can be used to determine who is a class member. First, he argues the class can use records from retailers, which purportedly track customers who make

2 Although some evidence used to satisfy ascertainability, such as corporate records, will actually identify class

members at the certificati on stage, ascertainability only requires the plaintiff to show that class members can be

identified.13 purchases online or who use loyalty cards . Sec ond, he proposes using affidavits of class members attesting to their purchases of WeightSmart. We conclude that, based on the evidence produced below, neither method satisfies Carrera‟s

burden to show the class is ascertainable.

A.

Carrera argues he will be able to show class membership using retailer‟s records of sales made with loyalty cards, e.g., CVS ExtraCare card s, 3 and records of

online sales . Carrera points to a F ederal Trade Commission (FTC) settlement with CVS regarding the sale of a supplement that was falsely advertised as boosting immune
systems . The supplement was sold only at CVS. The FTC stated in its press release regarding the settlement that

“ [p] urchasers will be identified through the CVS ExtraCare card program and sales on cvs.com.” A1 089.

Bayer contends there is no evidence that any other retailer of WeightSmart has membership cards, that the FTC

case is inapposite as it was a stipulated settlement in a non

Rule 23 context

, 4 in which some of the money paid might go

to class members but did not have to, and that it is speculative

3 ExtraCare cards are membership cards that offer customers

discounts. A1091.

4 Settlement classes raise different certification issues than litigation cla sses. See Amchem Prods., Inc. v. Windsor , 521 U.S. 591, 620 (1997). Accordingly, we question whether the FTC‟s proposals for identifying purchasers, made as part of a settlement (and a non

- class action settlement at that), bear any

relevance to the issue o f ascertainability in this case.14 wh ether CVS or any other retailer‟ s records will reveal customers who purchased WeightSmart.

T he evidence put forth by Carrera is insufficient to

show that retailer records in this case can be used to ide ntify

class members. Depending on the facts of a case , retailer

records may be a perfectly acceptable method of proving class membership. But t here is no evidence that a single purchase r of WeightSmart could be identified using records

of customer membersh ip cards or records of online sales.

There is no evidence that retailers even have records for the

relevant period. The FTC‟s press release does not support a finding that these records can determine class membership on the facts of this case. Moreover, we have no evidence the

FTC‟s method was successful.

B.

Carrera also contends the class is ascertainable using

affidavits of class members. He advances three arguments

. First

, due to the low value of the claims, class members will be unlikely to submit fr audulent affidavits. Second, because Bayer‟s total liability w ill not depend on the reliability of the affidavits, the ascertainability requirement should be relaxed. Finally, a screening method such as the one described in the

Prutsman Declaration will en sure any unreliable affidavits are identified and disregarded.

1.

Because the claims are of low value, Carrera argues it is less likely someone would fabricate a claim. He concedes it is unlikely customers would have retained a receipt, but15 asserts this i s irrelevant to possible falsification

. He contrasts

the claims at issue here to those in Marcus , which involved more money and more complicated issues of fa ct as to
whether an individual wa s a class member.

This argument fails because it does not address a core concern of ascertainability: that a defendant must be able to challenge class membership. This is especially true where the named plaintiff‟s deposition testimony suggested that individuals will have difficulty accurately recalling their purchases of WeightSmart. 5 Cf. In re Phenylprop anolamine (PPA) Prods. Liab. Litig. , 214 F.R.D. 614, 618

- 19 (W.D. Wa. 2003) (concluding affidavits could not be used to ascertain a class because the named plaintiffs had difficulty remembering the products they bought that contained PPA).

2.

Carrera also argues ascertainability is less important in this case because Bayer‟s total liability will be determined at trial, and will not increase or decrease based on the affidavits

submitted. As noted, this is an action und er the Florida Deceptive and Unfair Trade Practices Act (FDUTPA), Fla. Stat. § 501.201 et seq . “[A] consumer claim for damages under FDUTPA has three elements: (1) a deceptive act or unfair practice; (2) causation; and (3) actual damages.” Rollins, Inc. v. Butland , 951 So. 2d 860, 869 (Fla. Dist. Ct. App. 2006). There is no requirement of actual reliance on the

5 As mentioned, in his deposition testimony, Carrera was unable to remember when he purchased WeightSmart and confused WeightSmart with other products that are not part of this litigation.16 deceptive act. See Fitzpatrick v. Gen. Mills, Inc. , 635 F.3d 1279, 128 2

- 8 3 (11th Cir. 2011) (citing Davis v. Powertel,

Inc. , 776 So. 2d 971, 973 (Fl a. Dist. Ct. App. 2000)). “[T]he question is not whether the plaintiff actually relied on the alleged deceptive trade practice, but whether the practice was likely to deceive a consumer acting reasonably in the same
circumstances.” Davis , 776 So. 2d at 974

.

Contending liability under the FDUTPA is not based on individual issues, Carrera argues that he can prove at trial that Bayer owes a refund for every purchase of WeightSmart. 6 Since Bayer‟s records show it sold approximately $14 million worth of WeightS mart in Florida, Carrera asserts Bayer‟s liability will be determi ned at trial to be $14 million

— no more, no less. As a result

, affidavits attesting to class membership will only be used to determine to whom to pay the refund, and in what amount.

Under no circumstances, Carrera assures us, will Bayer pay any amount other than $14 million, even if a significant

number of inaccurate claims are submitted and paid out. For example, if claims are made for more than $14 million, and

inaccurate or false claims ca nnot be screened out, claimants will simply receive less than they are entitled to. And if too few claims are made, Carrera asserts the excess funds will not

be return ed to Bayer but will go to an unclaimed property

6 Bayer argues that if it is liab le, its liability will be limited to refunding the premium consumers paid for WeightSmart

based on its metabolism

- enhancing claims. For purposes of this appeal, it makes no difference whether customers would be entitled to a full refund or merely a refund of this premium.17 fund

. Carrera contrasts this situation w ith Marcus . In Marcus

, there was no evidence of the total number of RFTs allegedly purchased in violation of the consumer protection laws. Accordingly, each claim submitted would have increase d the

amo unt of money the defendants would have had to pay . As a result, the defendants had a more substantial interest in screening out false claims. Because Bayer‟s total liability cannot be so affected by unreliable affidavits , Carrera argues Bayer lacks an interest in challenging class membership.

Under Carrera‟s view, if fraudulent or inaccurate claims are paid out, the only harm is to other class members. But ascertainability protects absent class members as well as defendants, Marcus , 687 F.3d at 593, so Carrera‟s focus on Bayer alone is misplaced

. It is unfair to absent class members if there is a significant likelihood their recovery will be diluted by fraudulent or inaccurate claims. In this case, as we discuss, there is the possibility that Carrera‟s proposed

method for ascertaining the class via affidavits w ill dilute the recovery of true class members.

Bayer too has an interest in ensuring it pays only legitimate claims

. I f fraudulent or inaccurate claims materially reduce true class members‟ relief, these class

members could argue the named plaintiff did not adequately represent them because he proceeded with the understanding

that absent members may get less than full relief. 7 When class members are not adequately represented by the named plaintiff, they are not bound by the judgment. See Hansberry

7 We express no opinion on whether absent class members would be successful in arguing they were not adequately represented on this ground.18 v. Lee , 311 U.S. 32, 42 (1940 ) (explaining that due process requires the interests of absent class members to be adequately represented for them to be bound by the judgment). They could then bring a new action against Bayer and, perhaps, apply the principles of issue preclusion to prevent Bayer from re

- litigating whether it is liab le under the

FDUTPA. Bayer has a substantial interest in ensuring this does not happen. Accordingly, we reject Carrera‟s argument that the level of proof for ascertainability should be relaxed

because Bayer‟s ultimate liability will not be based on the

affidavits.

3

.

Finally, Carrera argues that a screening method such as

the one described in the Prutsman Declaration will ensure that Bayer pay s claims based only on reliable affidavits

. In his declaration, James Prutsman states that he works at Rust Consulting, Inc., a firm that has administered class settlements for nearly 25 years. A992. He explains that Rust “employs numerous methods to detect claims that are submitted fraudulently.” A995. “For example, the firm runs programmatic audits to identify duplicate claims, outliers, and other situations. In addition, Rust has successfully utilized fraud prevention techniques where by [sic] the claim form offers claim options that do not refle ct valid product descriptions, prices paid, geographic locations or

combinations of such factors. ” Id. “ By providing claims options such as a very high pill count or significantly higher purchase price in this case, fraudulent claim filers would naturally be inclined to select options that they believe would increase their claim value. As such, techniques such as these can be used to effectively [eliminate] fraudulent claims.” Id.19 Bayer maintains the Prutsman Declaration is insufficient to satisfy the reli ability standard because it only

addresses methods for allocating payment to a settlement class. This fact is important, according to Bayer, because

there are different standards for approving a settlement class

than for certifying a litigation class , and because Prutsman does not opine that his method would satisfy the standard for class certification. Bayer also argues that just because some defendants have agreed to use such techniques in administering a class settlement, it does not mean that it is

suff iciently reliable.

T he Prutsman Declaration does not show the affidavits

will be reliable. 8 Nor does it propose a model for screening claims that is specific to this case. And even if Prutsman produced a model that is specific to this case, we doubt

wheth er it could satisfy the ascertainability requirement. At this stage in the litigation, the district court will not actually see the model in action. Rather, it w ill just be told how the model will operate with the plaintiff‟s assurances it will be

effectiv e

. Such assurances that a party “intends or plans to meet the requirements” are insufficient to satisfy Rule 23. Hydrogen Peroxide , 552 F.3d at 318; see also Comcast Corp.

v. Behrend , 133 S. Ct. 1426, 1434 (2013) (rejecting

8 Based on this conclusion, we do not need to reach Bayer‟s argument that the District Court erred by considering the Prutsman Declaration, which was produced with Carrera‟s reply brief in support of its motion for class certification. Accordingly, we will deny Bayer‟s motion to supplement the appellate record, which relates solely to this issue.20 contention that Rule 23 is satis fied by an assurance that the plaintiffs can produce a damages model capable of measuring damages caused by a specific theory of antitrust impact). Carrera has suggested no way to determine the reliability of

such a model. For example, even if a model scre ens out a significant number of claims, say 25%, there is probably no way to know if the true number of fraudulent or inaccurate claims was actually 5% or 50%. 9

A s Marcus was decided after the trial court certified the class, Carrera should have another opportunity to satisfy the ascertainability requirement. Accordingly, we will afford

Carrera the opportunity to submit a screening model specific

to this case and prove how the model will be reliable and how

it would allow Bayer to challenge the affidavits

. Mere

assurances that a model can screen out unreliable affidavits

will be insu fficient

. 10

VI.

9 Ca rrera‟s ability to meet the ascertainability requirement using a screening model is further in doubt due to his inability to clearly remember his purchases of WeightSmart, although the District Court did not determine whether his testimony

was reliable. It would appear that the less reliable a class member‟s memory is, the more reliable any screening method

would have to be.

10 Bayer also argues that because the statute of limitations will bar some claims, the class cannot be ascertained. Because

the class is defined as all purchasers of WeightSmart in Florida, whether an individual‟s claim is barred by the statute of limitations is not an aspect of ascertainability in this case.21 For the foregoing reasons, we will vacate the District Court‟s order certifying the class action and remand for further proceedings consistent with this opinion

. Because

Marcus was decided after the court‟s certification of the class,

Carrera should be allowed to conduct further, limited discovery on the issue of ascertainability and afforded another opportunity to satisfy the ascertainability requirement

.