The Ninth Circuit recently ruled that class certification under Federal Rule of Civil Procedure 23 does not require class representatives to demonstrate that there is an “administratively feasible” means of identifying absent class members. Briseno v. ConAgra Foods, Inc., No. 15-55727, --- F.3d ----, 2017 WL 24618, *1 (9th Cir. Jan. 3, 2017). The court sided decisively with the Seventh[1] and Eighth Circuits,[2] and against the Third Circuit,[3] deepening an already present circuit split.
The Briseno Opinion
In Briseno, certain purchasers of Wesson-brand cooking oil products filed a false-advertising lawsuit against ConAgra in the Central District of California. According to the plaintiffs, despite being labeled as “100% Natural,” the cooking oil products contained genetically-modified organisms (“GMOs”) that are not natural. In addition to their individual claims, plaintiffs purported to bring this suit on behalf of all purchasers of these cooking oils in eleven states during a specified date range. ConAgra opposed class certification on the ground that there would be no administratively feasible way to identify members of the proposed statewide classes because consumers would not be able to reliably identify themselves as class members. In granting plaintiffs’ motion for class certification, the district court held that, at the class certification stage, it was sufficient that the class was defined by objective criteria. ConAgra appealed, and the Ninth Circuit affirmed, declining to condition class certification on a showing that there is an administratively feasible way to identify class members.
In so ruling, the Ninth Circuit focused its analysis on the text of Rule 23. Because Rule 23 does not mention administrative feasibility, the court applied traditional cannons of statutory construction and concluded that the enumerated requirements in Rule 23(a) constitute an exhaustive list. The court further reasoned that imposing a separate administrative feasibility requirement would render the manageability criterion in Rule 23(b)(3) largely superfluous, contravening the statutory construction cannon that a rule should be interpreted to give effect to every clause. Further support was drawn from the Supreme Court’s admonition in Amchem Products v. Windsor that courts lack authority to unilaterally amend the Federal Rules of Civil Procedure.[4]
The Briseno opinion further deepened a circuit split on whether administrative feasibility is a prerequisite to class certification. In so doing, the Ninth Circuit openly criticized the Third Circuit’s justifications for imposing an administrative feasibility requirement. The Third Circuit justified requiring administrative feasibility as mitigating administrative burdens.[5] But the Ninth Circuit reasoned administrative concerns were already addressed in Rule 23(b)(3) and that imposing a freestanding administrative feasibility requirement would offset the balance that the authors of Rule 23 struck between the benefits and burdens of a class action. The Third Circuit also reasoned that its administrative feasibility requirement was necessary to protect absent class members and to shield bona fide claimants from fraudulent claims.[6] The Ninth Circuit dismissed that concern, reasoning that neither Rule 23 nor the Due Process Clause requires actual notice to each individual class member, and that in practice, risk of dilution based on fraudulent claims is extraordinarily low. Finally, the Third Circuit concluded that an administrative feasibility requirement is necessary to protect the due process rights of defendants to raise individual challenges and defenses to claims.[7] The Ninth Circuit disagreed, reasoning that these issues need not be resolved at the class certification stage to protect a defendant’s due process rights.
Significance and Implications
Briseno eliminates a significant defense to class certification in the Ninth Circuit. Given the sharp circuit split on this issue, we anticipate that the Supreme Court will grant certiorari to issue a clarifying opinion. Until that day, however, the availability of this defense to class certification will continue to depend on where the class action is filed, highlighting the importance of understanding the controlling law in your jurisdiction.
In addition, Briseno provides support for retailers and other companies to refuse to produce customer identifying information in response to third-party subpoenas, at least pre-certification, since courts that follow this line of authority do not require plaintiffs to show that identifying putative class members is administratively feasible.
The Briseno opinion is available HERE. For more information about how this ruling may affect your business and/or current or pending litigation, please contact the authors.