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February 2, 2017 by Kyle A. ShambergDownload PDF


Consumers Confound ConAgra: The Ninth Circuit Follows the Trend on Administrative FeasibilityKyle A. Shamberg

In a nice win for consumers, the Ninth Circuit kicked off the new year by issuing its ruling in Briseno v. ConAgra Foods, Inc., holding that Federal Rule of Civil Procedure 23, which governs the prosecution of class action lawsuits, does not require plaintiffs to establish an “administratively feasible” means of identifying putative class members for purposes of class certification. The decision not only improves the chances of a consumer class action being certified in the Ninth Circuit, it represents yet another Circuit Court rejection of the onerous administrative feasibility requirement laid out by the Third Circuit in rulings like Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013), and Byrd v. Aaron’s, Inc., No. 14-3050, 2015 U.S. App. LEXIS 6190 (3d Cir. April 16, 2015).

As this blog has previously discussed, in recent years some courts, most notably the Third Circuit, have stretched the idea that courts need to be able to objectively define who is and who isn’t in the class beyond its logical function, requiring consumers not only to define an ascertainable class but to set out, at a fairly early stage, a precise method for identifying the exact individuals who make up the class.

In a consumer class action, the prototypical method of doing this would be through receipts documenting the purchase of a certain product. The problem, of course, is that most consumers don’t hold on to receipts for years after making a relatively small purchase, and defendants do not maintain records of everyone who purchases their products. This “heightened ascertainability” standard, then, has the practical impact of entirely eliminating the class action as a means of protecting consumers in cases where any one individual’s damages might be small but the class as a whole has suffered damages adding up to tens of millions of dollars. Fortunately, Briseno is the latest in a string of cases that have declined to follow the Third Circuit’s administrative feasibility approach and its inherent hurdle to class certification (for example, Sandusky Wellness Ctr. LLC v. Medfox Sci. Inc., 821 F.3d 992 (8th Cir. 2016); Rikos v. Procter & Gamble Co., 799 F.3d 497 (6th Cir. 2015); and Mullins v. Direct Digital LLC, 795 F.3d 654 (7th Cir. 2015), cert. denied, 136 S. Ct.1161 (2016)).

In Briseno, the plaintiffs claimed that the “100% Natural” assertion on ConAgra’s Wesson brand oils is false or misleading because the oil is made from GMO ingredients that are not, in fact, “natural.” ConAgra argued that class certification should be denied because the plaintiffs failed to propose an administratively feasible means of identifying class members, since consumers generally do not save grocery receipts and are unlikely to remember details about individual purchases of a low-cost product like cooking oil. The District Court rejected that argument and, on appeal, the Ninth Circuit affirmed the District Court’s certification of the class. Specifically, the Ninth Circuit declined to accept ConAgra’s argument that the plaintiffs were required to demonstrate an administratively feasible way, other than simple consumer self-identification, to identify individuals who had purchased Wesson oils:

A separate administrative feasibility prerequisite to class certification is not compatible with the language of Rule 23. Further, Rule 23’s enumerated criteria already address the policy concerns that have motivated some courts to adopt a separate administrative feasibility requirement, and do so without undermining the balance of interests struck by the U.S. Supreme Court, Congress and the other contributors to the rule.
 
The key holding is that “administrative feasibility” is not a separate class certification requirement, though the court did recognize that such arguments may still be made in the context of Rule 23’s express requirements. For example, the ruling recognizes that concerns about identifying the putative class may be analyzed in the context of Rule 23(b)(3)’s superiority requirement, which includes “the likely difficulties in managing a class action.” It also states that the feasibility of identifying class members can be reviewed under the predominance requirement of Rule 23(b)(3) as an additional, individual issue to be compared against any allegedly “common” issues.

Regardless, because the Ninth Circuit has stated that manageability concerns alone are not a sufficient basis to deny class certification, any administrative feasibility challenge will need to be combined with other challenges to certification. In other words, administrative feasibility in the Ninth Circuit will be only a supporting argument against plaintiffs seeking class certification under Rule 23(b)(3), rather than a death knell. That’s progress, and other courts, including the Third Circuit, should continue to take notice.