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.