Defendants cannot force class plaintiffs to show an administratively feasible way to identify class members as a prerequisite to class certification, deepening a split among the circuits.
In Briseno v. ConAgra Foods, Inc., the U.S. Court of Appeals for the Ninth Circuit rejected the defendant's reading of Federal Rule of Civil Procedure 23 that added an element of proffering an administratively feasible way to identify class members. Class litigation attorneys address this "administratively feasible" argument instead when discussing the "superiority" requirement under rule 23(b)(3), suggests ABA Section of Litigation leaders.
No Separate Administrative Feasibility Requirement
Plaintiffs filed a class action suit against ConAgra claiming a cooking oil product label was false and misleading. Although labelled "100% Natural," the oil came from bioengineered ingredients. ConAgra objected to the lower court's class certification.
It argued that plaintiff must set out a feasible way to identify class members. ConAgra contended that consumers generally do not save grocery receipts and are unlikely to remember details about individual purchases of cooking oil. Therefore, they could not reliability identify themselves as class members making the class ineligible for certification.
Based on the plain language of Rule 23(a), the court did not find an "administrative feasibility" prerequisite to class certification. Such a requirement "is not compatible with" Rule 23.
When certifying a class, the parties must satisfy each of the four elements of Rule 23(a)—numerosity, commonality, typicality, and adequacy. The parties must also satisfy at least one of Rule 23(b)'s requirements. Here, the court thought considering the likely problems in managing the class more appropriate in this rule. "Imposing a separate administrative feasibility requirement would render that manageability criterion largely superfluous," the appellate court stated.
Many courts, including the Third, Second, and Fourth Circuits, require the class representative show administrative feasibility. The Third Circuit justified the requirement "as a necessary tool." The condition mitigates administrative burdens, safeguards the absent and bona fide class members' interests, and protects the defendants' due process rights.
Joining the Seventh Circuit, the Ninth Circuit rejected the Third Circuit's rationale for imposing a separate administrative feasibility requirement. The court held that Rule 23 addresses the Third Circuit's concerns as to organizational hurdles, but through a different section.
Administrative Feasibility May Not Be Required, but It Cannot Be Avoided
"Practically speaking, though, it is an issue that must be dealt with in the case at some point whether the case is litigated or settled," notes Robert J. Herrington, Los Angeles, CA, web editor of the ABA Section of Litigation's Class Actions & Derivative Suits Committee. "The parties must figure out a way to give notice to all class members and how to distribute the money," Herrington points out.
After this case, "administrative feasibility will be argued in the superiority requirement of Rule 23. It will now be part of the balancing of the non-exclusive list of factors, including manageability," he continues. "This issue could be balanced out by other factors, or it could lead to a finding that class is not a superior device," states Herrington. The trial court's discretionary balancing of this issue in the superiority analysis would make reversal in the future harder, Herrington opines.
"The superiority element of Rule 23 takes into consideration the difficulty of identifying class members," agrees Teresa H. Michaud, San Francisco, CA, web editor of the Section's Class Actions & Derivative Suits Committee. This subject is often discussed by class action practitioners, Michaud continues. "The Ninth Circuit gave practitioners some clarity by expressly considering" under which element of Rule 23 the issue falls, she states.
Ben V. Seessel, Hartford, CT, newsletter editor of the Section's Class Actions & Derivative Suits Committee, disagrees that the administrative feasibility determination should be made under the manageability analysis. If it is impossible to identify class membership, then how does the court determine "whether a class action is superior" asks Seessel. The courts should analyze administrative feasibility before certification, he concludes.
When to Consider the Issue: Too Late or Too Early?
"The challenge is that class action administrators could be placed in the role of identifying valid class claim forms for membership in the class, when their role should be purely administrative," Michaud argues. The Ninth Circuit suggests that identifying invalid claims can occur during discovery, but the court did not clarify how this will play out, Michaud notes. "If there is no clear way of accomplishing that task, then presumably it should weigh against certification under the superiority prong," she posits.
"This case is making it really easy to certify a class," asserts Seessel. The court's point about "defendants' ability to dispute class certification at any time is insufficient to protect defendant's due process rights," Seessel continues. "To really protect defendants' rights, defendants would have the right to present evidence, cross-examine plaintiff, and make plaintiff prove his case... Here, the court is allocating the judge or jury's role to the claims administrator after a class has been certified and liability decided," Seessel explains.
"The Supreme Court has repeatedly cautioned that class actions are an exception to the general rule that litigation is to be conducted on an individual basis," Seessel says. This court's "opinion turns that analysis on its head. The case is also not limited to low value cases. It becomes a slippery slope," Seessel warns.
Candice A. Garcia-Rodrigo is an associate editor for Litigation News.
Keywords: class action, Rule 23, administrative feasibility
- Briseno v. ConAgra Foods, Inc., 844 F.3d 1121 (2017)
- Adam E. Polk, “Rule 23 Does Not Include an ‘Administrative Feasibility’ Requirement: Ninth Circuit,” Class Actions & Derivative Suits (January 17, 2017).
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