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.
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