Ninth Circuit and “Ascertainability”: No “Administratively Feasible” Method of Identifying Class Members Required

FlameOn January 3, 2017, the Ninth Circuit affirmed a district court’s decision to grant class certification, finding that, at the class certification stage, Rule 23 does not require plaintiffs to demonstrate that there is an administratively feasible way to determine who is in the putative class.

The Case.  Plaintiff Robert Briseno represented a putative class asserting state-law claims against ConAgra in eleven states.  Plaintiff claimed that ConAgra’s use of the “100% Natural” label on its Wesson-brand cooking oil products is false or misleading because Wesson oils are made from genetically modified organisms (“GMOs”), which plaintiff contends are not natural.  ConAgra opposed certification on ascertainability grounds, arguing that there is no “administratively feasible” way to identify members of the proposed class because consumers would not be able to reliably identify themselves as putative class members; for example, by producing a purchase receipt.

“Administrative Feasibility” Not Required.  The Ninth Circuit rejected ConAgra’s argument, holding that that there is no requirement that plaintiff demonstrate an “administratively feasible” method of identifying class members at the class certification stage.  Instead, the Panel held that a plaintiff seeking class certification must show that all of the requirements of Rule 23(a) are met—numerosity, commonality, typicality, and adequacy—and at least one of the requirements of Rule 23(b).  The Court held that the plain language of Rule 23 does not explicitly or implicitly “impose a freestanding administrative feasibility requisite to class certification.”  Moreover, the Court found that imposing such a requirement would conflict with the “well-settled” presumption that courts should not refuse to certify a class merely on the basis of management concerns.

A Narrow Ruling?  ConAgra framed its argument around the issue of ascertainability, arguing that the putative class could not be certified because plaintiffs could not overcome a threshold ascertainability test.  The Court disagreed, emphasizing that its ruling was cabined to the question of whether a plaintiff must demonstrate that there is an “administratively feasible” means of identifying absent class members to obtain class certification.  The Court explained that the Ninth Circuit has not adopted ascertainability as a prerequisite to class certification.  Rather, the Court has and will continue to address ascertainability-related issues, for example, overbroad class definitions or uninjured class members, through other Rule 23 requirements, such as superiority, commonality, or predominance.

Takeaway.  While the Court’s ruling on “administrative feasibility” corresponds with the position of the Sixth, Seventh, and Eight Circuits, it expressly rejects the Third Circuit’s position on the issue.  Given this Circuit split, the issue may end up at the Supreme Court.  However, given the Court’s position that its ruling only narrowly addresses administrative feasibility— not ascertainability—the practical effect of the Court’s opinion may be limited.  While the Court did not recognize a specific ascertainability requirement, it maintained that putative classes that cannot be reliably ascertained can be disposed of under the other Rule 23 requirements.