Deepening an already-existing circuit split, the Ninth Circuit has held that class certification is appropriate even if plaintiff has not shown that identifying class members is "administratively feasible." Expressly rejecting the "ascertainability" requirement enunciated by the Third Circuit, the Ninth Circuit based its decision largely on the fact that Rule 23 makes no mention of "administrative feasibility."

Briseno v. ConAgra Foods involved 11 consolidated statewide class actions alleging that ConAgra's use of the label "100% Natural" on its Wesson brand cooking oils was false and misleading under the laws of 11 different states. In opposing class certification, ConAgra relied upon the ascertainability requirement adopted by the Third Circuit. It argued that it was not administratively feasible to identify class members because grocery stores do not have customer records and consumers do not typically retain grocery receipts. The District Court rejected ConAgra's arguments and certified the 11 statewide classes. The Ninth Circuit allowed ConAgra to maintain an appeal under Rule 23(f), and affirmed the class certification ruling.

The Ninth Circuit affirmed based largely upon a textual analysis of Rule 23(a). It noted that there is no mention of "administrative feasibility" in the Rule and that, given the care with which language in the Federal Rules is selected, such "omission was meaningful." The Ninth Circuit also rejected the various policy reasons underlying the Third Circuit's adoption of an "ascertainability" requirement. It stated that "Rule 23's enumerated criteria already address the interests that motivated the Third Circuit and, therefore . . . an independent administrative feasibility requirement is unnecessary." According to the Ninth Circuit, the need to mitigate administrative burdens is met by Rule 23's superiority requirement, which "mandates that courts consider 'the likely difficulties in managing a class action.'"

Second, the Ninth Circuit reasoned that safeguarding absent class members' interests assumes a requirement that each individual class member receive actual notice of the class action, as opposed to the Rule's stated requirement of "best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort." (Emphasis in original). The Ninth Circuit also stated that the Third Circuit's ascertainability requirement overestimates the likelihood of fraud in the low-cost consumer goods class action context. Finally, the Ninth Circuit dismissed concerns regarding the protection of the defendants' due process rights, noting the defendants' ability to challenge the class representative's standing and general compliance with Rule 23, as well as the plaintiff's burden to prove every element of the claim.

The Ninth Circuit's decision comports with decisions by the Sixth, Seventh, and Eighth Circuits rejecting the ascertainability requirement. However, the Second and Fourth Circuits have followed the Third Circuit's lead and have required plaintiffs to demonstrate that it is administratively feasible to identify class members. Although the Supreme Court previously declined the opportunity to address this Circuit split last year in an appeal from the Seventh Circuit, it is likely that this important issue will be presented to the Court again at some point this year.

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