Ninth Circuit Lowers Hurdle for Class Certification (PDF-232kb)
Ninth Circuit Lowers Hurdle for Class Certification
Declines to Adopt “Administrative Feasibility” as Independent Requirement of Rule 23
Christine A. Scheuneman,
Nathaniel R. Smith
On January 3, 2017, the Ninth Circuit Court of Appeals declined to adopt “administrative feasibility” as an independent requirement for class certification. It held that Rule 23 does not require class counsel to show at the class certification stage that there is an “administratively feasible” means to identify all class members. It recognized the need to minimize administrative burdens of identifying and notifying absent class members, but found that Rule 23 already contains specific ways to achieve that goal.
Consumer class actions often present practical difficulties of identifying and notifying class members, particularly when low-cost products or services are at issue and individual consumers are unlikely to have proof of purchase. Some courts, most notably the Third Circuit Court of Appeals, have addressed these difficulties by requiring the class proponent to meet an “ascertainability” requirement and demonstrate an “administratively feasible” method to determine who is in the class. E.g., Byrd v. Aaron’s Inc., 784 F.3d 154 (3d Cir. 2015). In Briseno v. ConAgra Foods, Inc., No. 15-55727 (Jan. 3, 2017), the Ninth Circuit joined the Sixth, Seventh and Eighth Circuits when it declined to find an independent “administrative feasibility” prerequisite to class certification. The Ninth Circuit found the language of the federal class action rule, Rule 23, precluded it from imposing an additional prerequisite. The court also found the criteria included in Rule 23(b) already address the interests that concerned the Third Circuit when it required an independent, administrative feasibility requirement.
The Underlying Dispute
Plaintiffs in Briseno allege ConAgra Foods, Inc. deceptively marketed Wesson brand cooking oils made from genetically-modified organisms as “100% Natural.” Plaintiffs sought to certify 11 statewide classes alleging claims for violation of state consumer protection laws, breach of express and implied warranties, and unjust enrichment. ConAgra opposed class certification on several grounds, most notably arguing that the classes are not ascertainable because the identities of customers who purchased the product cannot be determined. The district court found that an objective criterion—whether class members purchased Wesson oil during the class period—was sufficient and ordered that the classes be certified in part. ConAgra obtained permission to appeal from that order.
The Ninth Circuit Affirms Class Certification
The Ninth Circuit declined to require class proponents to demonstrate that there is an “administratively feasible” method to determine who is in the class. First, the court observed that Rule 23(a) includes a comprehensive list of the “Prerequisites” to maintaining a class action in federal court, and does not include “a freestanding administrative feasibility prerequisite.” The court thus declined to find an additional, implied prerequisite beyond the rule’s requirements.
Second, the court concluded that Rule 23’s enumerated criteria already address the interests that motivated the Third Circuit to adopt an independent administrative feasibility requirement. The Third Circuit was concerned about mitigating the burdens of providing notice to the class and protecting the ability of the class members to opt out. Briseno found the manageability criterion of the superiority requirement in Rule 23(b)(3) “achieve[s] that goal” by requiring that courts consider likely manageability difficulties as one component of whether a class action is superior to other available methods for fair and efficient adjudication. The court expressed concern that making administrative feasibility a separate prerequisite to certification would likely cause class actions involving inexpensive consumer goods to fail at the outset.
Additionally, the Ninth Circuit found that concerns over providing notice to absent class members were “unfounded” because neither Rule 23 nor the Due Process Clause requires actual notice to each individual class member. It also rejected concerns over illegitimate claims as valid in theory but unlikely in practice. Finally, it noted that existing pre-trial, certification, trial and claims administration procedures adequately protect a defendant’s due process rights without an independent administrative feasibility requirement.
What are the Implications for the Ninth Circuit?
Briseno reinforces the Ninth Circuit’s reputation as a plaintiff-friendly forum. We expect to see continued forum-shopping into the Ninth Circuit—and away from the Third Circuit and other courts having a similar test, such as the Second Circuit and district courts therein—unless and until the Supreme Court weighs in on the role of “ascertainability” and “administrative feasibility” in class certification. However, Briseno appears to take less issue with the reason for the Third Circuit’s test than with the labels used. Briseno acknowledges the policy concern that the burdens of class actions can (as they often do) “compromise the efficiencies” the class action device was designed to achieve. The opinion also goes to some length to describe cases from other circuits as in fact turning on enumerated class certification criteria—suggesting those cases could come out the same way without invoking “administrative feasibility.” And, Briseno did not use the term “ascertainability” because the court noted that “courts ascribe widely varied meanings to that term.”
In light of Briseno, defendants facing a putative class action in the Ninth Circuit in which the alleged class members are not readily identifiable should consider reframing the problems associated with “ascertainability” within the enumerated criteria specified in Rule 23—just as the Ninth Circuit did.