December 9, 2019

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Ninth Circuit Rejects Administrative Infeasibility As A Basis For Decertifying Class Actions

The Ninth Circuit recently affirmed a trial court's certification of a class action, rejecting the defendant's argument that there is no administratively feasible way to identify class members. The case is Briseno v. ConAgra Foods, Inc.

The Facts of this Case:

Robert Briseno brought suit against ConAgra Foods, Inc., alleging that the "100% natural" label on its Wesson-brand cooking oil products was false or misleading. Mr. Briseno and other plaintiffs brought suit against ConAgra in eleven states. Those cases were consolidated into a single class action containing several subclasses.

Class plaintiffs alleged that Wesson oil products are made from bioengineered ingredients, or genetically modified organisms (GMOs), and therefore were not "100% natural."  

ConAgra opposed class certification on the ground that there is no administratively feasible way to identify members of the proposed class. Because the product is of such low cost, ConAgra argued, consumers would most likely not have retained receipts and most likely could not clearly recollect their purchases over the period of time during which the plaintiffs sought damages. Amongst the many problems that this creates, ConAgra argued it would not be able to identify which consumers relied on the "100% natural" claim, and which consumers were misled by it. In addition, class members could identify themselves with nothing more than an unsubstantiated affidavit alleging harm.

The Law on Class Actions:

Under Federal Rule of Civil Procedure 23, which governs class actions, a plaintiff must satisfy four requirements to obtain class certification - numerosity, commonality, typicality, and adequacy. 

In addition, a court must find that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. This means, among other things, that the court must consider the likely difficulties that the court and the parties will face in managing a particular class.

What the Court Said:

The trial court rejected ConAgra's argument. The trial court held that, for the purpose of certifying a class, the plaintiffs only need to clearly define the potential class. And the trial court found that the plaintiffs had in fact defined the class: all persons who purchased Wesson oil during the class period.

The trial court further noted that Rule 23 does not permit a court to consider the administrative infeasibility of identifying class members when certifying a class.

ConAgra appealed the decision to the Ninth Circuit and the Ninth Circuit agreed with the trial court. In doing so, the Ninth Circuit contributed to an existing split amongst the circuit courts nationwide. The majority of the appellate circuits have held, like the Ninth Circuit, that "administrative feasibility" is not a prerequisite that a plaintiff must meet to attain class certification. There are nevertheless two circuits that have opined that administrative feasibility is a bona fide consideration.

The First and Third Circuits have stated clearly their position that the administrative feasibility of identifying class members is a prerequisite to class certification.

One interesting feature of this case is that the Ninth Circuit acknowledged that Rule 23 already has a mechanism for addressing the difficulties in determining which class members have and have not suffered an injury. The rule requires the court to consider whether a class action is a superior method to non-class methods for fairly and efficiently adjudicating a controversy. 

Yet, in the particular case of Briseno v. ConAgra, the Ninth Circuit opined that the class format is indeed superior to its alternatives. The court reasoned that, because the product in question, Wesson oil, is so inexpensive, that plaintiffs could not individually bring suit as efficiently as they could in the context of a class. 

What Companies Should Do:

In light of Briseno v. ConAgra, companies should carefully consider the utility of the administrative feasibility argument when assessing the relative likelihood of class certification. The outcome, when raising this challenge, will depend greatly on the circuit in which a class action has been assigned.

Given the split in circuits on this question, it is now more likely to be an issue that the U.S. Supreme Court might wish to review.

In the meantime, companies faced with class actions should address administrative infeasibility arguments by using the framework of universally accepted and enumerated prerequisites to class certification. For example, it may now be more effective to challenge class certification under the predominance, typicality, manageability, or superiority requirements since Rule 23 clearly imposes those requirements for class certification.  

© 2019 Keller and Heckman LLP


About this Author

Douglas Behr, white collar criminal defense lawyer, Keller and Heckman, D.C. law
Senior Counsel

Douglas Behr joined Keller and Heckman in 1994. He practices civil litigation and white collar criminal defense. He handles matters regulated by the Drug Enforcement Administration.

Mr. Behr represents business, trade associations, and individuals before federal and state trial and appellate courts, regulatory bodies, and licensing forums with a concentration on Lanham Act false advertising, contract disputes, white collar crime defense, product liability, and trade regulation controversies. He also advises members of the business community on...

Arthur S. Garrett III, Keller Heckman, National Litigation Attorney, Insurance Coverage Lawyer,
Partner and General Counsel

Arthur Garrett joined Keller and Heckman in 1990. Mr. Garrett is co-chair of Keller and Heckman's national litigation practice, along with Robert S. Niemann. He also serves as the Firm's General Counsel.

Mr. Garrett's litigation practice focuses on product liability, with an emphasis on defending manufacturers of food, chemicals and pharmaceuticals. His trial experience has taken him all over the United States to try cases in state and federal courts and mediate/arbitrate disputes on behalf of corporations and trade associations. Mr. Garrett was recently trial counsel in a breach of contract/indemnity action that was selected as a Top 10 Defense verdict in the State of California. 

Eric Gotting, Keller Heckman, ligation attorney, appeals lawyer, personal injury

Eric Gotting joined Keller and Heckman in 2011. He serves as a partner in the firm's litigation and environmental practice groups specializing in complex civil and appellate matters, with a focus on toxic tort, environmental, and corporate litigation.

Litigation and Environmental Experience

Mr. Gotting has handled cases across the country, having tried matters to verdict and argued appeals before federal and state appellate courts. His experience includes class actions, mass tort litigation, and...

Robert S. Niemann, Trial Lawyer, Complex Business Attorney, Keller Heckman Law Firm

Robert Niemann is a trial lawyer in the litigation department concentrating his practice in the areas of complex business and commercial litigation, trade secrets, restrictive covenants, unfair business practices, products liability, and environmental toxic torts. Mr. Niemann is co-chair of Keller and Heckman's national litigation practice, along with Arthur S. Garrett III. He is also the co-chair of the Food Law Committee of the Litigation Section of the California State Bar Association, along with Christopher Van Gundy.

Mr. Niemann has...

Manesh K. Rath, Keller Heckman, Occupational Safety lawyer, Associations Attorney

Manesh Rath is a trial and appellate attorney with experience in general commercial litigation, food litigation, wage and hour and class action litigation, occupational safety and health law, association law, accessibility, and labor law.

Mr. Rath has been the lead amicus counsel on several cases before the U.S. Supreme Court, including Staub v. Proctor Hospital and Vance v. Ball State University.

Mr. Rath is a co-author of three books in the fields of OSHA law, wage and hour law, and labor and...