9th Cir. Weighs in on Ascertainability Debate with ConAgra Ruling, Challenging Circuit Split

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Earlier this year, the Ninth Circuit joined the Sixth, Seventh, and Eighth Circuits in declining to add “administrative feasibility” to Rule 23’s class certification requirements. Briseno v. ConAgra Foods, Inc., No. 15-55727 (9th Cir. Jan. 3, 2017) (slip op. available here). The ConAgra decision has been widely considered a victory for plaintiffs’ attorneys, as the Ninth Circuit refused to expand the requirements that plaintiffs must show for class certification and provided in-depth rebuttals to arguments made by the Third Circuit in requiring an additional showing of administrative feasibility to satisfy Rule 23.

In ConAgra, the Ninth Circuit upheld U.S. District Judge Margaret Morrow’s decision granting class certification to consumers in 11 states who allege that they were misled by the “all natural” claims on ConAgra’s Wesson cooking oil. Plaintiff Briseno, on behalf of himself and the class of consumers, alleged that ConAgra’s Wesson-brand cooking oil claims to be “all natural” but, in fact, contains genetically modified organisms (GMOs) and that Plaintiff Briseno and other consumers, to their detriment, relied on ConAgra’s misleading “all natural” claims when purchasing the cooking oil.

ConAgra opposed the district court’s certification decision on appeal, arguing that the Ninth Circuit should join the Third Circuit and reverse certification because the plaintiff failed to provide an “administratively feasible” plan to determine ascertainability. See Byrd v. Aaron’s Inc., 784 F.3d 154, 162-63 (3d Cir. 2015); Carrera v. Bayer Corp., 727 F.3d 300, 306-08 (3d Cir. 2013) (imposing “administrative feasibility” as a prerequisite to class certification). However, Circuit Judge Michelle T. Friedland, writing for the court, sharply disagreed with ConAgra’s stance stating, “ . . . 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.” Slip op. at 4.

Rule 23 specifies four distinct requirements that parties seeking certification must satisfy: numerosity, commonality, typicality, and adequacy. The Third Circuit previously voiced concerns, which ConAgra relied upon in its appeal, over the potential for fraudulent claims and defendant’s due process rights if administrative feasibility was not an additional pre-requisite for class certification. Slip op. 15-23. In this context, “administrative feasibility” would have meant that the plaintiffs would also be required to proffer a reliable method of identifying members of the certified class. However, Judge Friedland pointed to several means by which Rule 23 already addresses those concerns, most notably via the claims administration process, and found the enumerated list to be exhaustive. Id.

In March, the Ninth Circuit agreed to postpone making official its decision to stay issuance of the mandate in light of ConAgra’s request for Supreme Court review. The ConAgra decision further serves to defend and strengthen the role that class actions play in today’s jurisprudence, as Judge Friedland consistently expressed that small dollar consumer class actions exemplify the necessity of class actions and that imposing additional hurdles on consumers is inconsistent with the legislative intent of Rule 23.

Authored by: 
Trisha Monesi, Associate
CAPSTONE LAW APC