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Media Alerts - Briseno v. ConAgra Foods, Inc. - Ninth Circuit
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March 3, 2017
  Briseno v. ConAgra Foods, Inc. - Ninth Circuit
Headline: Ninth Circuit panel holds FRCP Rule 23 does not require named plaintiffs to proffer an administratively feasible way to identify class members as a prerequisite for class certification.

Areas of Law: Civil Procedure, Class Actions

Issues Presented: Whether class representatives must demonstrate there is an "administratively feasible" means of identifying absentee class members to a class action lawsuit under Federal Rules of Civil Procedure ("FRCP") Rule 23.

Brief Summary: Plaintiff-Appellee Robert Briseno, the named plaintiff in a class action complaint, along with other class members, sued Defendant-Appellant ConAgra Foods, Inc. ("ConAgra") for state-law claims for damages arising from an alleged misrepresentation on Wesson cooking oil products that it sold and marketed as 100% natural. The district court certified the class action as a 23(b)(3) class and ConAgra timely appealed under FRCP Rule 23(f). ConAgra contended the class should not have been certified as a class action because class representatives did not demonstrate an administratively feasible way to identify other class members, defined as those who had purchased Wesson cooking products within the class period. A panel for the Ninth Circuit reviewed the text of FRCP Rule 23 and concluded that a showing of administrative feasibility is not a prerequisite for class certification under Rule 23(a). Accordingly, the panel joined the Sixth, Seventh and Eight Circuits in rejecting the Third Circuit's recognition of an administrative feasibility requirement, holding that the Third Circuit's policy concerns are addressed by the enumerated requirements within the rule itself and that the drafters and the Supreme Court did not intend for courts to add requirements to be assessed a vacuum.

Significance: When plaintiffs seek to certify a class action they are not required to provide an administratively feasible way to identify class members as a condition for class action certification under FRCP Rule 23. The Ninth Circuit panel joins the Six, Seventh, and Eighth Circuits in limiting the requirements of class action certification to those enumerated within the rule itself, and rejecting the Third Circuit's justification that administrative feasibility should be shown to make certain the class can function as a class.

Extended Summary: Defendant-Appellant ConAgra markets, manufactures, sells, and distributes Wesson food products to multiple states within the United States. Plaintiff-Appellee Robert Briseno and other class members argued that ConAgra misrepresented certain Wesson cooking oil products when it labeled them as 100% natural because the products contained (and still contain) bioengineered ingredients which make them unnatural. Plaintiffs asserted state-law claims against ConAgra and filed class action complaints in eleven states which were ultimately consolidated into this action. The district court held that defining class members as those who purchased Wesson oil during the class period sufficiently identified the class for class certification purposes, and it granted Plaintiff's motion to proceed with damages claims in eleven states under FRCP Rule 23(b)(3).
To obtain class certification, the four requirements of Rule 23(a) (numerosity, commonality, typicality, and adequacy of the class representative) and at least one requirement of Rule 23(b) must be met. ConAgra argued that, in addition to these enumerated requirements, class proponents must demonstrate that there is an administratively feasible way to determine who is in the class and that plaintiffs did not meet this additional requirement.
The Ninth Circuit panel used "traditional rules of statutory construction" to interpret the plain language of the Rule 23(a), which provides:
"One or more members of a class may sue or be sued as representative parties on behalf of all members only if:
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class."
The panel concluded that drafters' enumeration of "prerequisites" implies that Rule 23(a) constitutes an exhaustive list reasoning that the drafters must have intentionally omitted anything they did not consider a true prerequisite for the class action to be certified. The Supreme Court also affirmed a close reading of Rule 23 text in Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997) holding that "Federal courts . . . lack authority to substitute for Rule 23's certification criteria a standard never adopted." The panel found that imposing an additional showing of administrative feasibility would deviate from the Supreme Court's guidance.
The panel addressed and rejected the three rationales behind the Third Circuit's administratively feasible requirement (1) mitigating administrative burdens, (2) protecting bona fide and present class members from fraudulent claims, and (3) protecting due process rights of defendants.
The Third Circuit requires an administratively feasible means to identify class members because of the need to mitigate administrative burdens imposed when litigating a Rule 23(b)(3) class action which requires notice that a class has been certified and an opportunity for absent class members to withdraw from the class. However, the panel found that Rule 23(b)(3)'s manageability criterion of the superiority requirement, which specifically mandates that courts consider "the likely difficulties in managing a class action," already provides a specifically enumerated mechanism that addresses judicial efficiency and administrative burdens in managing class actions. Adopting a freestanding administrative feasibility requirement, instead of evaluating manageability as one component of the superiority requirement, would conflict with Rule 23(b)(3)'s call for a comparative assessment of the costs and benefits of class adjudication, including the availability of "other methods" for resolving the controversy, thereby inviting courts to consider the administrative burdens of class litigation "in a vacuum." The panel observed that the "authors of Rule 23 opted not to make the potential administrative burdens of a class action dispositive and instead directed courts to balance the benefits of class adjudication against its costs."
The panel did not find the Third Circuit's concern for providing individual notice to absentee class members compelling because neither Rule 23 nor due process requires actual notice to class members. The text of the rule requires individuals to be identified by reasonable effort and be provided with the best notice under the circumstances. The due process clause also allows for an alternative means of notice, such as publication, third party notice, and paid advertising. The risk that an absentee class member will not be notified and therefore not have the option to opt out, as required for a 23(b)(3) class action, is minimal because the types of actions that proceed as 23(b)(3) claims often involve low-value consumer products where individual recoveries are low and not likely to entice one to pursue individual litigation. Similarly, because recovery amounts tend to be low, it is unlikely individuals would submit illegitimate claims that could dilute the claims of legitimate claimants.
Finally, the Third Circuit's due process concern that defendants have an opportunity to dispute whether claimants actually bought their product is addressed by the fact that the defendant can raise damages issues at the certification stage, challenging the class plaintiff's Article III standing, and, if certification is granted, throughout the course of the litigation. . Furthermore, after the class action has been adjudicated, defendants will have the opportunity "to individually challenge the claims of absent class members if and when they file claims for damages." .
The panel further noted that "identification of class members will not affect a defendant's liability in every case." In this case, for example, where the aggregate damages are calculated by multiplying the price premium for the allegedly false statement on each unit sold by the total units sold during the class period, "the identity of particular class members does not implicate the defendant's due process interest at all" because adding and subtracting claimants does not change its aggregate liability.
The text of Rule 23 does not explicitly require nor does it imply that named plaintiffs must show an administratively feasible way to identify absent class members. The Third Circuit's policy arguments for imposing this additional requirement have already been addressed within the parameters of the rule itself. The district court did not error in its class certification of this action.
To read the full opinion, please visit:

Panel: William A. Fletcher, Morgan B. Christen, and Michelle T. Friedland, Circuit Judges.

Argument Date: September 12, 2016

Date of Issued Opinion: January 3, 2017

Docket Number: 15-55727

Decided: Affirmed. The district court did not error in deciding plaintiffs do not need to show an administratively feasible means of identifying class members as a condition for class certification.

Case Alert Author: Amanda Cline

Counsel: Angela Spivy (argued), McGuireWoods LLP, Atlanta Georgia; R. Trent Taylor, McGuireWoods LLP, Richmond, Virginia; E. Rebecca Gantt, McGuireWoods LLP, Norfolk, Virginia; A. Brooks Gresham and Laura E. Coombe, McGuireWoods LLP, Los Angeles, California; for Defendant-Appellant.
Adam Levitt (argued) and Edmund S. Aronowitz, Grant & Eisenhofer P.A., Chicago, Illinois; Mary S. Thomas, Grant & Eisenhofer P.A., Wilmington, Deleware; Ariana J. Tadler, Henry J. Kelston, Meagan Keenan, and Carey Alexander, Milberg LLP, New York, New York; David E. Azar, Milberg LLP, Los Angeles, California; for Plaintiff-Appellee.

Author of Opinion: Judge Friedland

Circuit: Ninth Circuit

Case Alert Supervisor: Glenn Koppel

    Posted By: Glenn Koppel @ 03/03/2017 06:46 PM     9th Circuit  

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