9th Circuit Declines to Adopt Separate “Administrative Feasibility” Requirement for Rule 23

Does Federal Rule of Civil Procedure 23 require class representatives to demonstrate that there is an administratively feasible way of identifying absent class members, in order to obtain class certification? In a major ruling, the Ninth Circuit declined to impose such a requirement, finding it incompatible with Rule 23 and not otherwise required by due process. Briseno v. ConAgra Foods, Inc., No. 15-55727 (9th Cir. Jan. 3, 2017).

In Briseno, the district court certified a class of consumers who purchased Wesson-brand cooking oil products labeled “100% Natural.” The class representatives alleged the “100% Natural” label was false or misleading because Wesson oils are made from
bio-engineered ingredients which, according to plaintiffs, are not natural.

On appeal, defendant ConAgra sought reversal, arguing the district court should have denied class certification because plaintiffs had failed to offer an administratively feasible way to identify absent class members. According to ConAgra, the obligation to show administrative feasibility is part of a threshold “ascertainability” prerequisite to class certification. Slip op., at 7 n.4.

In a lengthy decision written by Judge Friedland, and joined by Judge W. Fletcher and Judge Christen, the Ninth Circuit refused to impose any such requirement. The Court began by noting that the issue was one of first impression in this circuit. And though other circuit courts had considered the issue under the rubric of “ascertainability,” the Ninth Circuit rejected this terminology as unhelpful and confusing, because courts had used this term to mean different things.

Focusing solely on whether a class proponent must proffer an administratively feasible way to identify class members, the Ninth Circuit concluded that the text of Rule 23 cannot fairly be read to impose such a requirement. Reading such a requirement into Rule 23, the Ninth Circuit reasoned, would be tantamount to amending the Rule outside the rule-making process Congress has ordered. Slip op., at 10.

The remainder of the Ninth Circuit’s ruling carefully examines, and rejects, each of the policy rationales typically offered for imposing a freestanding administrative feasibility requirement. Particularly interesting is the Ninth Circuit’s rejection of ConAgra’s argument that the inability to identify all class members at the class certification stage could deny it a due process right to challenge its liability as to each class member. As the Court explained, “identification of class members will not affect a defendant’s liability in every case.” Slip op., at 22. “[I]f the defendant is ultimately found to have charged, for example, 10 cents more per unit than it could have without the challenged sales practice, the aggregate amount of liability will be determinable even if the identity of all class members is not.” Id. at 23.

With this decision, the Ninth Circuit joins the Sixth, Seventh, and Eighth Circuits in declining to adopt an administrative feasibility requirement. Perhaps this will finally motivate the Third Circuit to revisit its contrary rulings. See Byrd v. Aaron’s Inc., 784 F.3d 154 (3d Cir. 2015); Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013).