What should judges do when a class action charges a company with cheating thousands of people out of small amounts of money each, but there are no records of who those people are? For decades, the answer has been clear: Certify the class if it meets the requirements for class certification, then distribute any funds recovered to class members who submit valid claim forms or affidavits. If that's not sufficient, distribute the funds to appropriate others via cy pres awards so the case compensates the class members to the extent it can, holds the defendant accountable and deters the defendant and others from violating the law and class members' rights in the future.

In a series of recent decisions exemp­lified by Carrera v. Bayer, however, the U.S. Court of Appeals for the Third Circuit has come up with a new answer: Refuse to certify the class because the class members are not “ascertainable” and let the defendant keep the money. The court on May 1 declined to rehear the case en banc.

Carrera was a typical consumer class action that would have been regularly certified in the past. It sought damages from Bayer Corp. for falsely and deceptively promoting WeightSmart, a dietary supplement. The proposed class was clearly defined in objective terms (all people who purchased WeightSmart in Florida in a specified time period). Bayer's total liability was capped at a finite amount based on its records and Bayer could not have been held accountable without a class action. The district court certified the class.