Can’t Identify Class Members But Want Class Certification — No Problem

Briseno v. ConAgra, 9th Cir., 1/3/17

In consumer fraud class actions, where the class is made up of consumers who purchase small ticket items (like groceries) and don’t typically keep their receipts, it is difficult to identify and ascertain the identities of class members. The manufacturer and retailer probably don’t have records of who purchased what and when, and consumers may forget or even lie about whether they purchased a particular product. So how does one identify and provide notice to class members, or ensure that the claims are reliable, since class members have faulty memories and may lie. Some courts call this an “administrative feasibility” issue. The question tackled by the 9th in this case: Should administrative feasibility problems prevent class certification under Federal Rule 23? Answer: Not even close.

In ConAgra, plaintiffs said that defendant advertised Wesson Oil as being “100% Natural,” but that the oil actually contains GMOs. The class was defined as those people who purchased the product within 11 states within the statute of limitations of each state. The trial court certified the case. ConAgra appealed, arguing that the case should not have been certified because of the administrative feasibility related to identifying class members.

The 9th affirmed the trial court’s grant of certification. The plain language of Rule 23 does not include an “administrative feasibility” factor, nor does it include an “ascertainability” requirement. (The 9th doesn’t even have a definition of “ascertainability.”) The prerequisites of class certification are set out in Rule 23(a), which speaks to numerosity, common questions, typicality and adequacy. The language of the Rule is plain. And under principles of statutory construction, listing specifically enumerated prerequisites should mean the list is exhaustive. Federal courts are not allowed to substitute a rules criteria with a standard never adopted.

While the Third uses an administrative feasibility test, the 9th joined other Circuits in rejecting Third’s use of that test and its reasoning.

The Ninth explored the Third’s reasoning in detail, and dispelled each concern. It noted that the due process rights of absent class members don’t require actual notice; the notice has to be the best practicable under the circumstances. Notice can be ordered through means like publication or the web. While such notice is imperfect, the due process rights of absent class members should be weighed against the fact that the vast majority of them wouldn’t file an action anyway. With respect to the reliability of claims filed, the court believes there is little incentive to commit perjury for such a small amount, and there are various administrative claims tools (the court lists them) to reduce the incidence of fraud.

For the 9th a stand-alone administrative feasibility requirement would foist onto Rule 23 a prerequisite that is not listed, and would place too much emphasis on that concern over other very important policy considerations of class litigation — like whether class members had other available alternatives to seek redress in low value consumer cases. To preserve the benefits of class litigation, the perfect cannot become the enemy of the good.