January 26, 2017, Trial News
Ninth Circuit rejects ascertainability requirement for class actions
The Ninth Circuit has upheld certification of 11 statewide consumer classes claiming that ConAgra Foods misrepresented its Wesson oil products as “100% Natural.” In doing so, the panel joined a growing circuit split on the issue of ascertainability—that is, whether class representatives must show that an “administratively feasible” method exists to identify absent class members.
The Ninth Circuit has upheld certification of 11 statewide consumer classes claiming that ConAgra Foods misrepresented its Wesson oil products as “100% Natural.” In doing so, the panel joined a growing circuit split on the issue of ascertainability—that is, whether class representatives must show that an “administratively feasible” method exists to identify absent class members. The Third Circuit considers administrative feasibility a prerequisite for class certification, while the Sixth, Seventh, Eighth, and now Ninth Circuits hold that Rule 23 is a complete list of criteria that already addresses the Third Circuit’s policy concerns. (Briseno v. ConAgra Foods, Inc., 2017 WL 24618 (9th Cir. Jan. 3, 2017).)
The plaintiffs are consumers who purchased ConAgra’s “100% Natural” Wesson Oil products. They allege that the labeling is misleading or false because Wesson products contain bioengineered ingredients. The plaintiffs proposed 11 statewide consumer classes. ConAgra argued that these classes were ineligible for certification because no administratively feasible way exists for determining membership in them because there are no records of all consumers who purchased a Wesson oil product. The district court sided with the plaintiffs and certified the classes, and ConAgra appealed. A unanimous Ninth Circuit panel, led by Judge Michelle Friedland, affirmed.
“We refrain from referring to ‘ascertainability’ in this opinion because courts ascribe widely varied meanings to that term,” the court said. “Although the parties here use the word ‘ascertainability,’ they dispute only whether a class proponent must proffer an administratively feasible way to identify class members. That is therefore the only issue we decide.”
The panel then analyzed the language of Rule 23(a), which lists numerosity, commonality, typicality, and adequacy of representation as prerequisites for bringing a class action. Because ascertainability and administrative feasibility are not listed, the court declined to include them.
Judge Friedland recognized that the Third Circuit had reached the opposite conclusion in Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013). The Carrera court crafted an administrative feasibility requirement not based on Rule 23’s text, but as a necessary tool to ensure the “class will actually function as a class.” It held that such a requirement would mitigate administrative burdens, protect absent class members’ interests, and protect defendants’ due process rights.
The Ninth Circuit examined and rejected each rationale in turn. Addressing the administrative burdens argument, the court pointed out that “Rule 23(b)(3) already contains a specific, enumerated mechanism to achieve that goal: the manageability criterion of the superiority requirement. . . . [I]t specifically mandates that courts consider ‘the likely difficulties in managing a class action.’” And even if a class may be difficult to manage, there is a “well-settled presumption that courts should not refuse to certify a class merely on the basis of manageability concerns.”
The court expressed little concern about absent class members’ interests in cases involving low-cost consumer products. It cited precedent establishing that each individual class member need not receive actual notice. Instead, the “best notice that is practicable under the circumstances” is sufficient—and what is practicable varies based on the facts and causes of action in a particular case. The court noted the risk that absent class members will be denied an opportunity to opt out and pursue individual litigation is unlikely to materialize in cases like this, where recovery will be too small to incentivize individual action.
Finally, the court reasoned that an administrative feasibility requirement is unnecessary to protect the defendants’ interests—they already can raise individualized challenges and defenses during litigation, and if a settlement or verdict is reached, they can challenge individual claimants who come forward.
New York City attorneys Ariana Tadler and Henry Kelston were among several attorneys who represented the plaintiff class. “We’re so gratified that the court didn’t just get it—it went out of its way to emphatically state what Rule 23 says, what it doesn’t say, and what is expected under the rule,” Tadler said. “We feel so validated not only in the work we did in this case before the district court, but validated in our consistent perception and application of Rule 23 and the purposes that it’s supposed to serve.”
Kelston explained that the administrative feasibility requirement would impose an immense burden on plaintiffs. “It was interpreted to mean that there was a record requirement—that there had to be documentary evidence of the purchase by the class member,” he said. “For may products, particularly low-cost products, that documentary evidence doesn’t exist, and so those class actions would be foreclosed.” Tadler agreed, adding that most people don’t save receipts for every purchase they make because they don’t anticipate a problem will arise. “Consumers aren’t buying products with the expectation of suing the manufacturer of the product, or with the expectation they’re being lied to,” she said. “How then do you go back to track that?”
Briseno provides a good example of the kind of claims that would be categorically barred by an ascertainability requirement. “It is a consumer case where individual damages for a single customer are likely very low in terms of monetary value, and yet this is a product that was sold to millions and millions of people,” Tadler said. “The fact that we’ve achieved this victory is important for this case and all consumer cases.”