By Alexander M. Smith
In its first published opinion of 2017, the U.S. Court of Appeals for the Ninth Circuit held that Federal Rule of Civil Procedure 23 does not include a freestanding requirement of “an administratively feasible way to determine who is in the class.” The Ninth Circuit’s decision further deepens a split between the First, Second, Third, and Fourth Circuits, which have imposed a freestanding “ascertainability” requirement as a prerequisite for class certification, and the Sixth, Seventh, Eighth, and Ninth Circuits, which have held that Rule 23 does not impose either an “ascertainability” or “administrative feasibility” requirement separate from the requirements of Rule 23(a) or Rule 23(b)(3). Compare In re Nexium Antitrust Litig., 777 F.3d 9 (1st Cir. 2015), Brecher v. Republic of Argentina, 806 F.3d 22 (2d Cir. 2015), Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013), and EQT Prod. Co. v. Adair, 764 F.3d 347 (4th Cir. 2014) with Rikos v. Procter & Gamble Co., 799 F.3d 497 (6th Cir. 2015), Mullins v. Direct Digital LLC, 795 F.3d 654 (7th Cir. 2015), and Sandusky Wellness Ctr. LLC v. Medtox Sci. Inc., 821 F.3d 992 (8th Cir. 2016).
ConAgra produces Wesson-brand cooking oil, which is labeled “100% Natural.” Plaintiffs filed putative class actions in eleven states alleging that alleged that the term “100% Natural” was false and misleading because Wesson oils are extracted from bioengineered crops and are therefore not “natural.” Those cases were consolidated into a single case in the United States District Court for the Central District of California, and the plaintiffs sought to certify a set of classes consisting of all residents of California, Colorado, Florida, Illinois, Indiana, Nebraska, New York, Ohio, Oregon, South Dakota, or Texas who purchased Wesson cooking oils within the class period. ConAgra opposed class certification on the basis, among others, that “there would be no administratively feasible way to identify members of the proposed classes because consumers would not be able to reliably identify themselves as class members.” The district court certified the class notwithstanding ConAgra’s objections.
ConAgra filed an interlocutory appeal of the class certification order under Rule 23(f). The Ninth Circuit affirmed. Its principal opinion focused exclusively on whether Rule 23 imposes a freestanding “administrative feasibility” requirement. It also addressed ConAgra’s remaining arguments in an unpublished memorandum disposition.