July 17, 2015 Practice Points

Eleventh Circuit Rules in Karhu v. Vital Pharmaceuticals

Self-identification, the majority found, suffers from two intertwined problems

by E. Colin Thompson

On June 9, 2015, in Karhu v. Vital Pharmaceuticals, Inc., Case No. 14-11648, the Eleventh Circuit issued an unpublished opinion in accord with Third Circuit’s decision in Carrera v. Bayer Corp., 727 F. 3d 300, 310 (3d Cir. 2013), in regard to what plaintiffs must demonstrate to satisfy the implicit ascertainability requirement necessary to certify a class.

In Karhu, the plaintiff-appellant appealed a decision of the District Court for the Southern District of Florida refusing to certify classes of purchasers of a weight loss supplement called VPX Meltdown Fat Incinerator (Meltdown), which was marketed by defendant-appellee Vital Pharmaceuticals, Inc. Karhu alleged that he and the members of the putative classes purchased Meltdown in reliance on Vital’s advertising that Meltdown aids in fat loss, which Karhu alleged it does not. The district court held that Karhu failed to demonstrate the ascertainability requirement was satisfied. The Eleventh Circuit panel unanimously concluded the district court was correct in this holding.

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