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The Ascertainability Battle Wages OnSusana Cruz  Hodge

The question whether Rule 23 imposes an ascertainability requirement continues in the Ninth Circuit despite the issue having been settled in Briseno v. ConAgra Foods, Inc., 844 F.3d 1121 (9th Cir. 2017), cert. denied sub nom. ConAgra Brands, Inc. v. Briseno, 138 S. Ct. 313 (2017). In Briseno, the Ninth Circuit joined the Second, Sixth, Seventh, and Eight Circuits in rejecting the notion that Rule 23 requires plaintiffs to show class membership is ascertainable or “administratively feasible.” Briseno presented the typical conundrum – if Rule 23 imposes an ascertainability requirement, can a class action involving an inexpensive consumer product ever be certified? The Ninth Circuit correctly recognized that these cases “would likely fail at the outset if administrative feasibility were a freestanding prerequisite to certification,” and declined to follow the Third Circuit in making it virtually impossible to bring these types of class actions.

In Briseno, the plaintiff challenged the “100% Natural” claim on the label of defendant’s Wesson cooking oil products. In opposing class certification, defendant argued it would be almost impossible to ascertain class members due to lack of receipts or other proofs of purchase. The district court rejected this argument, and the Ninth Circuit affirmed, stating

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 Supreme Court, Congress, and the other contributors to the Rule.

In expressly rejecting the Third Circuit’s view, the Briseno court opined that Rule 23’s manageability and superiority requirements adequately address the concerns typically raised in ascertainability arguments. The Ninth Circuit also rejected the Third Circuit’s concern regarding protecting against illegitimate claims, correctly emphasizing key role of the claims administration process:

Defendants will have [] opportunities to individually challenge the claims of absent class members if and when they file claims for damages. At the claims administration stage, parties have long relied on “claim administrators, various auditing processes, sampling for fraud detection, follow-up notices to explain the claims process, and other techniques tailored by the parties and the court” to validate claims. Rule 23 specifically contemplates the need for such individualized claim determinations after a finding of liability.

While Briseno has been recognized as settling this hotly contested issue, some district courts in California have ignored its clear mandate. Compare Bruton v. Gerber Products Co., 15-15174, 2017 WL 3016740, at *1 (9th Cir. July 17, 2017) (recognizing Briseno “held that there was no separate ‘administrative feasibility’ requirement for class certification”) and Hefczyc v. Rady Children's Hosp.-San Diego, D071264, 2017 WL 5507854, at *11 (Cal. Ct. App. Nov. 17, 2017) (stating “Briseno acknowledges [that] the issue of whether administrative feasibility is required is disputed among the federal circuit courts” and refusing to follow “an unsettled line of federal court authority”); In re SFPP Right-of-Way Claims, CV1507492JVSDFMX, 2017 WL 2378363, at *14 (C.D. Cal. May 23, 2017) (finding “property ownership is a threshold liability concern require[ing] a legal determination [and] the Court itself—not claims administrators—must rule on them.”).

These courts should have heeded the Ninth Circuit’s refusal to rewrite Rule 23. Briseno, 844 F.3d at 1128 (“The authors of Rule 23 opted not to make the potential administrative burdens of a class action dispositive and instead directed courts to balance the benefits of class adjudication against its costs. We lack authority to substitute our judgment for theirs.”). But it seems some courts will continue to impose a requirement that has little to no support in Rule 23’s text, even when it means violating the doctrine of stare decisis.