[co-author: Gail Jankowski]
The Ninth Circuit affirmed certification of putative class actions brought against ConAgra Foods, Inc. (“ConAgra”) by consumers who claimed that ConAgra’s “100% Natural” labels on Wesson cooking oils were false or misleading. The plaintiffs argued that the oils are “not natural” because they are made from bioengineered ingredients, and moved to certify 11 statewide classes of consumers who purchased the oils within the applicable statute of limitations periods. ConAgra opposed class certification on the ground that there was no administratively feasible way to identify members of the proposed classes because consumers could not reliably identify themselves as class members.
The crux of ConAgra’s argument was that, in addition to the four requirements of Rule 23(a), plaintiffs must also establish an administratively feasible method to determine the members of the class. The district court rejected this argument and held that, at the certification stage, it was sufficient that the class was defined by an objective criterion: whether class members purchased Wesson oil during the class period. The district court therefore certified 11 statewide classes. ConAgra appealed the certification under Rule 23(f).
The Ninth Circuit applied a traditional statutory interpretation to Rule 23(a) and, noting that omissions are meaningful, concluded that Rule 23(a)’s list of numerosity, commonality, typicality, and adequacy, was exhaustive and did not include an administrative feasibility requirement. Further, the panel rejected the Third Circuit’s position that administrative feasibility is needed to meet the administrative burdens of Rule 23(b)(3) and instead reasoned that the superiority requirement presently achieves that goal. The panel also found unsupported and hypothetical the Third Circuit’s position that an administrative feasibility requirement is necessary to protect absent class members and protect against fraudulent claims. The panel instead aligned with the reasoning of the Seventh Circuit – that a standalone administrative feasibility requirement would result in courts considering administrative burdens of class litigation “in a vacuum” and would likely determine the outcome in cases where administrative feasibility is difficult to demonstrate but where no realistic alternative to class treatment exists. Ultimately, the Ninth Circuit joined the Sixth, Seventh, and Eighth Circuits in declining to adopt an administrative feasibility requirement under Rule 23.
Briseno v. ConAgra Foods, Inc., No. 15-55727 (9th Cir. Jan. 3, 2017).