Ninth Circuit Widens Circuit Split on Rule 23’s Ascertainability Requirement
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On January 3, 2017, a Ninth Circuit panel (the “panel”) weighed in on a growing split among circuits over Rule 23’s ascertainability requirement—in particular, the extent to which a plaintiff must prove there is an “administratively feasible” means of identifying class members. Ascertainability is a particularly thorny issue in cases involving low-cost consumer goods, where proof of actual purchase by an individual consumer can be questionable at best (e.g., no receipts retained by consumers, hazy recollections regarding the purchase of such low-cost items, etc.), and where the plaintiffs’ bar routinely advocates for “self-identification” of class members vis-à-vis affidavits that generally are not subject to cross-examination. Several circuits have split over the issue of whether plaintiffs have to provide an “administratively feasible” plan for identifying class members —a standard first articulated by the Third Circuit and cited with apparent approval by the First, Second, Fourth and Eleventh Circuits, while seemingly rejected by the Sixth, Seventh and Eighth Circuits.

In Briseno v. ConAgra Foods, Inc., No. 15-55727 (9th Cir. January 3, 2017), a Ninth Circuit panel came down on the side of the latter group of circuits, holding that plaintiffs are not required to show that identification of class members is “administratively feasible,” because Rule 23 contains no such prerequisite. The ruling has important implications for consumer class actions filed in the Ninth Circuit, particularly those involving low-cost items. And it very well may make courts in the Ninth Circuit even more attractive for the plaintiffs’ bar. Indeed, California—host of the infamous “Food Court,” the Northern District of California—has been and continues to be a magnet for class action lawsuits involving low-cost items, including food and beverages.

The panel’s decision in Briseno affirmed a California district court’s decision certifying a consumer class action alleging that “100% Natural” labels on ConAgra’s Wesson brand cooking oil were false and misleading to consumers because those products contained genetically modified organisms (“GMOs”). ConAgra had argued, among other things, that the putative class was not ascertainable because determination of class membership was not “administratively feasible.” ConAgra argued that consumers would have no reliable means by which to identify themselves as members in light of the fact that most consumers would not retain receipts or otherwise recall specific details of their purchases in any meaningful way. The district court rejected that argument, holding that, “at the certification stage, it was sufficient that the class was defined by an objective criterion: whether class members purchased Wesson oil during the class period.”

Affirming the district court’s certification order, the panel pointed to the plain language of Rule 23, which does not contain an express “administrative feasibility” requirement (ironically, Rule 23 does not contain an express “ascertainability” requirement either, although the Ninth Circuit did not dispute the existence of such a requirement). According to the panel, a separate “administrative feasibility” requirement would render superfluous Rule 23(b)(3)(D)’s requirement that courts consider “the likely difficulties in managing a class action” prior to certification.

Taking on the Third Circuit’s reasoning behind its “administrative feasibility” requirement directly, the panel offered policy justifications for its decision, voicing concerns about the viability of consumer class actions involving relatively low-cost products, like the cooking oil at issue in Briseno. That category of cases, according to the panel, “would likely fail at the outset if administrative feasibility were a freestanding prerequisite to class certification.” The panel dismissed ConAgra’s argument that a lower ascertainability standard would do away with any requirement of proof of actual purchase of the product at issue and open the floodgates for fraudulent claims from individuals who never purchased the product, thus diluting the potential recovery for legitimate claimants. According to the panel, a consumer would be unlikely to risk perjury for a de minimis monetary recovery. Moreover, the panel pointed to other mechanisms available to ConAgra post-certification that would enable it to challenge any claims it believes to be illegitimate, including challenging the credibility of absent class members if and when they file claims for damages. The panel likewise added that dilution of legitimate claimants’ recovery was unlikely given the consistently low rates of participation in consumer class actions.

According to the panel, the Third Circuit is the only circuit to have expressly adopted and applied the “administrative feasibility” requirement, notwithstanding its recognition that the First, Second and Fourth Circuits all have cited the Third Circuit with approval. In the end, the panel declined to adopt the Third Circuit’s “administrative feasibility” standard, instead joining the Sixth, Seventh and Eighth Circuits in holding that “administrative feasibility” is not a prerequisite to Rule 23 certification. The panel’s decision deepens the circuit split on administrative feasibility as a prerequisite to Rule 23 certification.

In joining those circuits that have concluded that plaintiffs need not demonstrate administrative feasibility prior to class certification, the panel’s ruling seemingly lessens plaintiffs’ burden on class certification in the Ninth Circuit, especially for claims involving relatively low-cost products where no reliable means of identifying class members exists. Nonetheless, as noted above, the panel’s ruling departs from those of other circuits, which seemingly continue to impose an “administrative feasibility” standard that plaintiffs must satisfy.

In one respect, the panel’s decision was narrow: it framed the question as whether Rule 23 requires a finding of administrative feasibility at the certification stage, rather than whether Rule 23 requires that class membership be readily ascertainable. In focusing on the former rather than the latter, the panel was able to marshal greater support for its position from other circuits. The panel likewise acknowledged that class actions nonetheless must be manageable and the superior method for resolving the dispute.

Looking forward, the circuit split and possibility of disparate class certification decisions across circuits may generate renewed interest in amending Rule 23 to include express ascertainability requirements and/or prompt the Supreme Court to take up the issue itself. At present, however, companies nonetheless should consider whether an “administrative feasibility” argument is viable based on the law of the particular jurisdiction in which they are sued. As noted above, not all circuits agree on this divisive issue. Likewise, even in the Ninth Circuit, companies should consider whether similar arguments exist, albeit under the auspices of separate Rule 23 requirements (e.g., manageability, predominance).

  • Partner

    Jason’s practice focuses on class action defense and other complex commercial litigation in the data breach, financial services and consumer contexts. Jason has represented clients at trial and on appeal in all manner of ...

  • Partner

    Tom is co-head of the firm’s product liability and mass tort litigation practice group. His practice focuses on class action, mass tort and environmental litigation. Tom is a litigator, handling complex civil matters, including ...


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