Robert Briseno v. Conagra Foods, Inc.
844 F.3d 1121
9th Cir.2017Background
- Plaintiffs (consumers) sued ConAgra over Wesson-brand cooking oil labeled “100% Natural,” alleging the label was false because the oils contained bioengineered (GMO) ingredients.
- Eleven statewide consumer classes (CA, CO, FL, IL, IN, NE, NY, OH, OR, SD, TX) were proposed for purchases during each state’s statute-of-limitations period; the district court certified damages classes under Rule 23(b)(3).
- ConAgra appealed under Rule 23(f), arguing certification was improper because plaintiffs did not show an administratively feasible method to identify class members (an “ascertainability”/administrative-feasibility argument).
- The Ninth Circuit considered whether Rule 23 requires a freestanding administrative-feasibility prerequisite (distinct from Rule 23(a)/(b) criteria and manageability).
- The court concluded Rule 23’s text and Supreme Court precedent do not support adding a separate administrative-feasibility requirement and affirmed certification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 23 requires a freestanding administrative-feasibility (ascertainability) prerequisite to identify absent class members | No separate requirement; class defined by objective criterion (purchase during class period) suffices and Rule 23’s existing prerequisites address concerns | Rule 23 requires plaintiffs to show an administratively feasible way to identify class members (consumers unlikely to retain receipts or prove purchases) | No. Rule 23 does not impose an independent administrative-feasibility prerequisite; existing Rule 23 criteria (including manageability) address concerns |
| Whether manageability/notice concerns justify an independent requirement | Manageability concerns are addressed by Rule 23(b)(3)’s superiority/manageability factors and available case-management tools | Absent an administratively feasible list, notice and management burdens will undermine class efficiencies | Court rejected separate requirement; manageability is for Rule 23(b)(3) analysis and courts may use subclasses, claim administration, notice methods, etc. |
| Whether due process or res judicata concerns require administrative feasibility | Due process satisfied by Rule 23 notice standards and post-liability claim procedures; defendants can challenge standing and claims | Defendants need reliable identification to challenge individual claims and protect due process/res judicata rights | Court held defendants have ample opportunities (certification discovery, merits, claims process) and aggregate-liability models can obviate need for individual identification; due process doesn't require perfect identification at certification |
| Whether risk of fraudulent or dilutive claims mandates an administrative-feasibility prerequisite | Risk of dilution is speculative; courts can deter fraud through claim administration, audits, sampling, and low individual incentives make fraud unlikely | Without pre-screening/identification, illegitimate claims will dilute recoveries and harm bona fide claimants | Rejected as insufficient to overcome class mechanism benefits; existing claim-administration techniques and low participation rates reduce dilution risk |
Key Cases Cited
- Amchem Prods. v. Windsor, 521 U.S. 591 (1997) (courts may not add requirements to Rule 23 beyond the Rule’s text and advisory process)
- Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) (party seeking certification must affirmatively demonstrate Rule 23’s requirements)
- Mullins v. Direct Digital, LLC, 795 F.3d 654 (7th Cir. 2015) (rejecting a freestanding administrative-feasibility requirement)
- Rikos v. Procter & Gamble Co., 799 F.3d 497 (6th Cir. 2015) (declining to follow Third Circuit’s administrative-feasibility approach)
- Sandusky Wellness Ctr., LLC v. Medtox Sci., Inc., 821 F.3d 992 (8th Cir. 2016) (declining to adopt a separate administrative-feasibility prerequisite)
- Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013) (articulating the Third Circuit’s administrative-feasibility/ascertainability requirement)
- Byrd v. Aaron’s Inc., 784 F.3d 154 (3d Cir. 2015) (Third Circuit clarification of Carrera)
- Marcus v. BMW of N. Am., LLC, 687 F.3d 583 (3d Cir. 2012) (discussing defendant’s right to challenge class-membership proof)
- Six (6) Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 1301 (9th Cir. 1990) (discussing cy pres distribution when claimants are unlocated or unclaimed)
- In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124 (2d Cir. 2001) (manageability concerns are not alone a favored basis to deny certification)