Ascertainability Not a Prerequisite for Class Certification: Ninth Circuit

In Briseno v. ConAgra Foods, Inc., the US Court of Appeals for the Ninth Circuit held that FRCP 23 neither provides nor implies that demonstrating an administratively feasible way to identify class members is a prerequisite for class certification.

Practical Law Litigation

On January 3, 2017, in Briseno v. ConAgra Foods, Inc., the US Court of Appeals for the Ninth Circuit held that FRCP 23 neither provides nor implies that demonstrating an administratively feasible way to identify class members is a prerequisite for class certification (2017 WL 24618 (9th Cir. Jan. 3, 2017)).

The plaintiffs were purchasers of Wesson-brand cooking oil products that were labeled "100% Natural." They alleged that the label was false or misleading because Wesson oils are made from bioengineered ingredients. ConAgra, the defendant, was responsible for manufacturing, marketing, distributing, and selling Wesson products.

The plaintiffs filed putative class actions against ConAgra in 11 states. Those cases were then consolidated. The plaintiffs moved to certify the classes as residents of certain states "who have purchased Wesson Oils within the applicable statute of limitations periods established by the laws of their state of residence . . . through the final disposition of this and any and all related actions." ConAgra opposed class certification based on the inability of consumers to reliably identify themselves as class members. The district court rejected this argument and certified the classes.

ConAgra appealed the decision to certify, arguing that in addition to the requirements of FRCP 23(a) and (b), class proponents must also demonstrate that there is an administratively feasible way to determine who is in the class.

Joining the US Courts of Appeals for the Sixth, Seventh, and Eighth Circuits, the Ninth Circuit rejected ConAgra's argument, affirmed the lower court's ruling, and declined to adopt an administrative feasibility requirement, reasoning that:

  • A separate administrative feasibility prerequisite to class certification was not compatible with the language of FRCP 23. Further, the omission of an explicit requirement suggests that the language of FRCP 23 was intended to provide exhaustive requirements for class certification.

  • Class actions involving inexpensive consumer goods in particular would likely fail at the outset if administrative feasibility were a freestanding prerequisite to certification.

  • Neither the FRCP nor the due process clause requires actual notice to each individual class member.

  • The risk of dilution based on fraudulent or mistaken claims was negligible.

  • There are adequate existing opportunities for defendants to challenge the plaintiff's case; protecting a defendant's due process rights does not necessitate a separate administrative feasibility requirement.

The Ninth Circuit rejected the Third Circuit's administrative feasibility requirement found in Byrd v. Aaron's, Inc. (784 F.3d 154 (3d Cir. 2015)), deepening a circuit split and opening the door to US Supreme Court review of ascertainability requirements.

 
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