On January 3, 2017, the Ninth Circuit issued its ruling in Briseno v. ConAgra Foods, Inc. and held that Rule 23 does not require plaintiffs to establish an “administratively feasible” means of identifying putative class members for purposes of class certification in contrast to the holding of the Third Circuits (but consistent with the 6th and 7th Circuits). Thus, the ruling makes class certification easier in the Ninth Circuit.
In Briseno, plaintiffs claim that the “100% Natural” claim on ConAgra’s Wesson brand oils is false or misleading because the oil is made from GMO ingredients that are not, as alleged by plaintiffs, “natural.” ConAgra argued that class certification should be denied for this claim because plaintiffs failed to propose a means for identifying class members and could not show an administratively feasible method for identification because 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 rejected that argument and, on appeal under Rule 23(f), the Ninth Circuit affirmed the class certification order. Specifically, the Ninth Circuit rejected ConAgra’s argument that the plaintiffs were required to demonstrate an administratively feasible way other than 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.
Thus, the key holding is that “administrative feasibility” is not a separate class certification requirement. Significantly, however, 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 individualized issue to be compared against any allegedly “common” issue or issues.
Nevertheless, because the Ninth Circuit has said that manageability alone is not a sufficient basis to deny class certification, any administrative feasibility challenge will need to be combined with other challenges to certification. Put differently, administrative feasibility in the 9th Circuit will only be a supporting argument against plaintiffs seeking class certification under Rule 23(b)(3).