Bayer Opposes Rehearing of One-A-Day WeightSmart Class Action

Top Class Actions’s website and social media posts use affiliate links. If you make a purchase using such links, we may receive a commission, but it will not result in any additional charges to you. Please review our Affiliate Link Disclosure for more information.

Bayer Corp. asked the Third Circuit Court of Appeals last week not to reconsider its decision to reverse certification of a class action lawsuit over the alleged false advertising of One-A-Day WeightSmart vitamins, arguing that the decision would not create significant hurdles for future class action lawsuits. The plaintiff appealing the decision argues that unless the ruling is reversed, consumers will be forced to save receipts for every purchase in order to sue a company for false advertising claims.

In August, a three-judge panel ruled that a New Jersey federal judge should not have certified a Class of consumers who alleged Bayer falsely advertised the benefits of the WeightSmart vitamins, finding that it was too difficult to determine whether a consumer legitimately belonged to the Class without a receipt or other proof of purchase. The panel found there was insufficient evidence to show that retailers retain online sales or loyalty card records that could provide proof that a consumer purchased the product.

The decision dealt a significant blow to consumer class action lawsuits by effectively saying that unless a consumer retained the receipt for a purchase, no matter how small the purchase was, they would be unable to pursue legal action against a company.

Plaintiff Gabriel Carrera requested the appellate court to review the case again, arguing that their decision has created an “unprecedented hurdle” for plaintiffs in class action lawsuits who purchased inexpensive products that most consumers would not keep a receipt for.

In response, Bayer argues that the Third Circuit’s holding was not a barrier to future class action lawsuits because the ruling did not prohibit putative Class Members from using affidavits as proof they belong to the class if they do not have receipts or other records of sale. Bayer claims that the issue is only with Carrera’s specific case and will not have an effect on other class action lawsuits involving items with low retail value.

“Plaintiff Carrera bases his petition for rehearing on a faulty leap of logic: Because the panel found that he failed to offer any evidence that class members are ascertainable in this case, all small-value consumer actions will fail,” Bayer argues. In reality, Carrera has mischaracterized the appellate court’s holding. The panel simply found that the class definition was unclear and should not be certified and did not take issue with Carrera’s ability to identify every class member as he claims.

“The panel did not hold that affidavits were unacceptable forms of proof,” Bayer says. “To the contrary, the panel said affidavits were permissible if Carrera could provide some reliable screening method that accounted for his own testimonial shortcomings.”

According to Bayer, Carrera testified that there were methods that could ensure that potential Class Members who submitted falsified affidavits were excluded from the class action lawsuit. However, the pharmaceutical company argued that he failed to meet his legal burden to provide a case-specific model about how to reliably and feasibly exclude bogus claims from the action.

Further, Bayer takes issue with Carrera’s purported inability to remember details about his purchase of the WeightSmart vitamins. According to Bayer, Carrera could not identify WeightSmart or its packaging, could not recall the approximate purchase dates, how many WeightSmart vitamins he purchased or how much he paid for the vitamins.

“Carrera ignores that he – as the named class representative – could not reliably identify WeightSmart,” Bayer writes. “Carrera ignores the Panel’s invitation on remand for him to attempt to protect against the unreliability demonstrated by his own testimony.”

Lastly, Bayer argues Carrera fails to prove the existence of third-party records that could prove class membership. The pharmaceutical company claims that Carrera failed to conduct any discovery related to third-party retailer recordkeeping, simply submitting a document from a settlement with the Federal Trade Commission regarding an unrelated product that cannot be applied to this specific class action lawsuit.

Carrera is represented by Caroline Bartlett, James Cecchi and Lindsey Taylor of Carella Byrne Cecchi Olstein Brody & Agnello PC and Joe Whatley of Whatley Drake & Kallas LLC.

The Bayer One-A-Day WeightSmart Class Action Lawsuit is Carrera v. Bayer Corp., et al., Case No. 12-2621, in the U.S. Court of Appeals for the Third Circuit.

UPDATE: The Appeals Court sided with the plaintiff and reversed it’s previous ruling. A New Jersey Federal judge granted preliminary approval to a proposed class action settlement in December 2014. Class Members have until May 4, 2015 to file a claim to receive between $15 and $250 from the proposed class action settlement. 

UPDATE 2: On Aug. 3, 2015, viewers began reporting they were receiving checks in the mail from the Bayer WeightSmart class action settlement. Congratulations to everyone who submitted a valid claim and got PAID!