Norton Rose Fulbright: Red Bull Settlement Problems Show Consequences Of Certifying Unascertainable Classes

By Stephanie Stroup

Since the Third Circuit’s opinion in Carrera v. Bayer Corp. [enhanced opinion available to lexis subscribers], courts have been battling with the approach to consumer classes for small-ticket items because consumers often do not retain receipts or proofs of purchase (think consumer products like OTC drugs, food items, beverages, etc.). The challenge is that without receipts or proofs of purchase, a court cannot definitively ascertain the class. Although courts have been all over the map when it comes to certifying classes based on ascertainability (particularly the Ninth Circuit), the recent settlement in a class action over Red Bull products provides a good example of the unintended consequences of certifying an unascertainable class, especially to class members themselves.

The Class Settlement

On September 3, 2014, a court in the Southern District of New York preliminarily approved a settlement in the class action lawsuit filed against Red Bull on January 16, 2013. Plaintiff Benjamin Careathers brought claims against the energy drink company based on the implication that the well-known advertising phrase “Red Bull Gives You Wings” suggests the product improves consumer’s physiological and mental performance over and above a cup of coffee or a caffeine pill.

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