In Karhu v. Vital Pharm., Inc., No. 13-60768-CIV (S.D. Fla. July 17, 2014), the Southern District of Florida denied a plaintiff’s request for reconsideration of the Court’s order denying class certification. In Karhu, the plaintiff filed suit against Vital Pharmaceuticals, Inc. (“VPX”), the manufacturer of the dietary supplement VPX Meltdown Fat Incinerator (“Meltdown”). VPX advertises that consumers could use Meltdown to “burn fat” and achieve rapid weight loss. The plaintiff, Karhu, filed suit against VPX, alleging that Meltdown was ineffective for its advertised purposes. Karhu alleged claims for, inter alia, breach of the Magnusson-Moss Warranty Act, breach of express warranty, and unjust enrichment and sought to represent a nationwide class.

VPX did not possess records identifying individual consumers who had purchased Meltdown, as it had sold the product to third-party retailers. The plaintiff, however, did not obtain any retailer’s records. In denying class certification, the District Court, following the Third Circuit’s 2013 decision in Carrera v. Bayer Corp., held that the proposed class members were not ascertainable absent sales records identifying putative class members.

In seeking reconsideration, the plaintiff argued that VPX had untimely produced records identifying its sales data to third-party retailers before the plaintiff moved for class certification. The District court rejected this excuse, noting that the plaintiff (and his expert) had included such sales data in his motion for class certification.

The plaintiff also argued that the District Court was in clear error by holding that class members could not be ascertained absent retailers’ records identifying individual sales to consumers. The District Court likewise rejected this argument, noting that while the Eleventh Circuit had not expressly approved the more stringent standard for ascertainability set forth by the Third Circuit in Carrerra, the Eleventh Circuit has held that “one aspect of a clearly ascertainable class is that the identification of class members is administratively feasible.” Without sales records, there was no administratively feasible means to identify putative class members. Accordingly, the District Court denied the plaintiff’s motion for reconsideration of the order denying class certification.