November 07, 2018

Rule 23 Does Not Include an “Administrative Feasibility” Requirement: Ninth Circuit

Adam E. Polk – January 17, 2017

On January 3, 2016, in Briseno v. ConAgra Foods, Inc., No.15-55727 (9th Cir. Jan. 3, 2017), the U.S. Court of Appeals for the Ninth Circuit held that Federal Rule of Civil Procedure 23 does not require plaintiffs to demonstrate an administratively feasible way to identify class members as a prerequisite to class certification.  In declining to adopt an “administrative feasibility” requirement, the Ninth Circuit aligned with the Sixth, Seventh, and Eighth Circuits, which have also declined to recognize such a requirement.  In holding that no administrative feasibility requirement exists, the Ninth Circuit rejected the Third Circuit’s holding that such a requirement is necessary to ensure that the class will function appropriately.

Plaintiffs in ConAgra are purchasers of Wesson-brand cooking oil products that were labeled “100% Natural.” Plaintiffs allege that the “100% Natural” labeling was false or misleading because the oils were made from genetically modified organisms, or GMOs, and therefore are not natural. Plaintiffs sought to certify a class of all persons in 11 states who purchased the oils.  ConAgra opposed class certification on grounds that there was no administratively feasible way to identify class members, because consumers could not be expected to reliably identify themselves.  The United States District Court for the Central District of California rejected ConAgra’s argument and granted plaintiffs’ motion in relevant part.

The Ninth Circuit affirmed, holding (1) the plain language of Rule 23(a) contains no explicit administrative feasibility requirement and (2) no implicit administrative feasibility requirement is necessary to ensure that a certified class functions as intended. The Ninth Circuit expressly declined to follow the Third Circuit’s finding of such a requirement, reasoning that Rule 23’s existing criteria sufficiently address the interests that caused the Third Circuit to hold that plaintiffs need to demonstrate an administratively feasible way to identify class members:

  • Rule 23(b)(3)’s manageability factor requires that courts consider “the likely difficulties in managing a class action,” offsetting the need for an independent administrative feasibility requirement to mitigate the administrative burdens of trying a Rule 23(b)(3) class action.
  • Because Rule 23 requires only “the best notice that is practicable under the circumstances,” there is no requirement that plaintiffs provide actual notice to all class members in order to certify a class.
  • Concerns about fraudulent claims infringing on a defendant’s due process rights do not justify an administrative feasibility requirement because plaintiffs already bear the burden of demonstrating compliance with Rule 23 and defendants can oppose plaintiffs’ showing at each stage of the case, including challenging “the claims of absent class members if and when they file claims for damages.”

Adam E. Polk is a partner with Girard Gibbs LLP in San Francisco, California.

Adam E. Polk – January 17, 2017