Robert Briseno v. Conagra Foods, Inc. ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT BRISENO, individually and No. 15-55727
on behalf of all others similarly
situated, D.C. No.
Plaintiff-Appellee, 2:11-cv-05379-
MMM-AGR
v.
CONAGRA FOODS, INC., OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge, Presiding
Argued and Submitted September 12, 2016
San Francisco, California
Filed January 3, 2017
Before: William A. Fletcher, Morgan B. Christen,
and Michelle T. Friedland, Circuit Judges.
Opinion by Judge Friedland
2 BRISENO V. CONAGRA FOODS
SUMMARY *
Class Certification
The panel affirmed the district court’s class certification
in putative class actions brought against ConAgra Foods in
eleven states by consumers who purchased Wesson-brand
cooking oil products labeled “100% Natural” during the
relevant period.
Plaintiffs argued that the “100% Natural” label was false
or misleading because Wesson oils are made from
bioengineered ingredients that plaintiffs contend are “not
natural.” ConAgra manufactures, markets, distributes, and
sells Wesson products. Defendant urged reversal of the
district court’s class certification because the district court
did not require Plaintiff-Appellee Robert Briseno and the
other named class representatives to proffer an
administratively feasible way to identify members of the
certified classes.
The panel held that the language of Federal Rule of Civil
Procedure 23 neither provides nor implies that
demonstrating an administratively feasible way to identify
class members is a prerequisite to class certification. The
panel therefore joined the Sixth, Seventh, and Eighth
Circuits in declining to adopt an administrative feasibility
requirement.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
BRISENO V. CONAGRA FOODS 3
COUNSEL
Angela Spivey (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, Delaware; 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.
OPINION
FRIEDLAND, Circuit Judge:
This appeal requires us to decide whether, to obtain class
certification under Federal Rule of Civil Procedure 23, class
representatives must demonstrate that there is an
“administratively feasible” means of identifying absent class
members. Defendant-Appellant ConAgra Foods, Inc.
(“ConAgra”) urges us to reverse class certification because
the district court did not require Plaintiff-Appellee Robert
Briseno and the other named class representatives
(collectively, “Plaintiffs”) to proffer a reliable way to
identify members of the certified classes here—consumers
4 BRISENO V. CONAGRA FOODS
in eleven states who purchased Wesson-brand cooking oils
labeled “100% Natural” during the relevant period. 1
We have never interpreted Rule 23 to require such a
showing, and, like the Sixth, Seventh, and Eighth Circuits,
we decline to do so now. See Sandusky Wellness Ctr., LLC,
v. Medtox Sci., Inc., 821 F.3d 992, 995–96 (8th Cir. 2016);
Rikos v. Procter & Gamble Co., 799 F.3d 497, 525 (6th Cir.
2015); Mullins v. Direct Digital, LLC, 795 F.3d 654, 658
(7th Cir. 2015), cert. denied, 136 S. Ct. 1161 (2016). A
separate administrative feasibility prerequisite to class
certification is not compatible with the language of Rule 23.
Further, Rule 23’s enumerated criteria already address the
policy concerns that have motivated some courts to adopt a
separate administrative feasibility requirement, and do so
without undermining the balance of interests struck by the
Supreme Court, Congress, and the other contributors to the
Rule. We therefore affirm.
I
Plaintiffs are consumers who purchased Wesson-brand
cooking oil products labeled “100% Natural.” The “100%
Natural” label appeared on every bottle of Wesson-brand oil
throughout the putative class periods (and continues to
appear on those products). Plaintiffs argue that the “100%
Natural” label is false or misleading because Wesson oils are
made from bioengineered ingredients (genetically modified
organisms, or GMOs) that Plaintiffs contend are “not
1
We address ConAgra’s other challenges to the district court’s class
certification order in a concurrently filed memorandum disposition.
BRISENO V. CONAGRA FOODS 5
natural.” ConAgra manufactures, markets, distributes, and
sells Wesson products.
Plaintiffs filed putative class actions asserting state-law
claims against ConAgra in eleven states, and those cases
were consolidated in this action. Plaintiffs moved to certify
eleven classes defined as follows: 2
All persons who reside in the States of
California, Colorado, Florida, Illinois,
Indiana, Nebraska, New York, Ohio, Oregon,
South Dakota, or Texas who have purchased
Wesson Oils within the applicable statute of
limitations periods established by the laws of
their state of residence (the “Class Period”)
through the final disposition of this and any
and all related actions.
As relevant here, ConAgra opposed class certification on the
ground 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. As a result, ConAgra argued that the class
was not eligible for certification. 3
2
We refer to Plaintiffs’ amended motion for class certification,
which is the subject of this appeal.
3
ConAgra called this a failure of “ascertainability.” We refrain
from referring to “ascertainability” in this opinion because courts ascribe
widely varied meanings to that term. For example, some courts use the
word “ascertainability” to deny certification of classes that are not
clearly or objectively defined. See, e.g., Brecher v. Republic of
Argentina, 806 F.3d 22, 24–26 (2d Cir. 2015) (holding that a class
6 BRISENO V. CONAGRA FOODS
The district court acknowledged that the Third Circuit
and some district courts have refused certification in similar
circumstances, but it declined to join in their reasoning.
Instead, the district court 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 ultimately granted Plaintiffs’ motion in
part and certified eleven statewide classes to pursue certain
claims for damages under Federal Rule of Civil Procedure
23(b)(3). ConAgra timely sought and obtained permission
to appeal pursuant to Rule 23(f).
II
Federal Rule of Civil Procedure 23 governs the
maintenance of class actions in federal court. Parties seeking
class certification must satisfy each of the four requirements
of Rule 23(a)—numerosity, commonality, typicality, and
adequacy—and at least one of the requirements of Rule
23(b). Ellis v. Costco Wholesale Corp., 657 F.3d 970, 979–
80 (9th Cir. 2011).
defined as all owners of beneficial interests in a particular bond series,
without reference to the time owned, was too indefinite); DeBremaecker
v. Short, 433 F.2d 733, 734 (5th Cir. 1970) (affirming denial of class
certification because a class composed of state residents “active in the
‘peace movement’” was uncertain and overbroad). Others have used the
term in referring to classes defined in terms of success on the merits.
See, e.g., EQT Prod. Co. v. Adair, 764 F.3d 347, 360 n.9 (4th Cir. 2014)
(remanding and instructing the district court to consider, “as part of its
class-definition analysis,” inter alia, whether the proposed classes could
be defined without creating a fail-safe class). Our court does not have
its own definition. See infra note 4.
BRISENO V. CONAGRA FOODS 7
ConAgra argues that, in addition to satisfying these
enumerated criteria, class proponents must also demonstrate
that there is an administratively feasible way to determine
who is in the class.4 ConAgra claims that Plaintiffs did not
propose any way to identify class members and cannot prove
that an administratively feasible method exists because
consumers do not generally save grocery receipts and are
unlikely to remember details about individual purchases of a
low-cost product like cooking oil. We have not previously
interpreted Rule 23 to require such a demonstration, and, for
the reasons that follow, we do not do so now.
A
We employ the “traditional tools of statutory
construction” to interpret the Federal Rules of Civil
4
On appeal, ConAgra continues to present administrative feasibility
as part of a threshold “ascertainability” prerequisite to certification.
ConAgra relies on a footnote in Berger v. Home Depot USA, Inc.,
741 F.3d 1061 (9th Cir. 2014), to argue that our court has recognized
such a requirement. But in that footnote we explicitly declined to decide
whether the district court abused its discretion by denying certification
based on a “threshold ascertainability test.” Id. at 1071 n.3. ConAgra
cites no other precedent to support the notion that our court has adopted
an “ascertainability” requirement. This is not surprising because we
have not. Instead, we have addressed the types of alleged definitional
deficiencies other courts have referred to as “ascertainability” issues, see
supra note 3, through analysis of Rule 23’s enumerated requirements.
See, e.g., Torres v. Mercer Canyons Inc., 835 F.3d 1125, 1136–39 (9th
Cir. 2016) (addressing claim that class definition was overbroad—and
thus arguably contained some members who were not injured—as a Rule
23(b)(3) predominance issue); Probe v. State Teachers’ Ret. Sys.,
780 F.2d 776, 780 (9th Cir. 1986) (recognizing that a class must not be
vaguely defined and must be “sufficiently definite to conform to Rule
23”). Although the parties here use the word “ascertainability,” they
dispute only whether a class proponent must proffer an administratively
feasible way to identify class members. That is therefore the only issue
we decide.
8 BRISENO V. CONAGRA FOODS
Procedure. Republic of Ecuador v. Mackay, 742 F.3d 860,
864 (9th Cir. 2014) (quoting United States v. Petri, 731 F.3d
833, 839 (9th Cir. 2013)). In construing what Rule 23
requires, our “‘first step’” is thus “‘determin[ing] whether
the language at issue has a plain meaning.’” Id. (quoting
McDonald v. Sun Oil Co., 548 F.3d 774, 780 (9th Cir.
2008)); see also Beech Aircraft Corp. v. Rainey, 488 U.S.
153, 163 (1988) (noting that interpretation of the federal
rules “begin[s] with the language of the Rule itself”). “When
interpreting [the Rule], words and phrases must not be read
in isolation, but with an eye toward the ‘purpose and context
of the statute.’” Petri, 731 F.3d at 839 (quoting Dolan v.
U.S. Postal Serv., 546 U.S. 481, 486 (2006)). “An
interpretation that gives effect to every clause is generally
preferable to one that does not.” Mackay, 742 F.3d at 864.
Beginning then with the plain language, Rule 23(a) is
titled “Prerequisites” and 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.
BRISENO V. CONAGRA FOODS 9
FED. R. CIV. P. 23(a). This provision identifies the
prerequisites to maintaining a class action in federal court.
It does not mention “administrative feasibility.”
Traditional canons of statutory construction suggest that
this omission was meaningful. Because the drafters
specifically enumerated “[p]rerequisites,” we may conclude
that Rule 23(a) constitutes an exhaustive list. See Silvers v.
Sony Pictures Entm’t, Inc., 402 F.3d 881, 885 (9th Cir. 2005)
(explaining that, under the doctrine of expressio unius est
exclusio alterius, the enumeration of certain criteria to the
exclusion of others should be interpreted as an intentional
omission). We also take guidance from language used in
other provisions of the Rule. In contrast to Rule 23(a), Rule
23(b)(3) provides, “The matters pertinent to these findings
include,” followed by four listed considerations. FED. R.
CIV. P. 23(b)(3) (emphasis added). If the Rules Advisory
Committee had intended to create a non-exhaustive list in
Rule 23(a), it would have used similar language. See
Russello v. United States, 464 U.S. 16, 23 (1983) (“‘[W]here
Congress includes particular language in one section of a
statute but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.’”
(alteration in original) (quoting United States v. Wong Kim
Bo, 472 F.2d 720, 722 (5th Cir. 1972) (per curiam))).
Moreover, Rule 23(b)(3) requires a court certifying a class
under that section to consider “the likely difficulties in
managing a class action.” FED. R. CIV. P. 23(b)(3)(D).
Imposing a separate administrative feasibility requirement
would render that manageability criterion largely
superfluous, a result that contravenes the familiar precept
that a rule should be interpreted to “give[] effect to every
clause.” Mackay, 742 F.3d at 864.
10 BRISENO V. CONAGRA FOODS
Supreme Court precedent also counsels in favor of
hewing closely to the text of Rule 23. In Amchem Products,
Inc. v. Windsor, 521 U.S. 591 (1997), the Court considered
whether a settlement-only class could be certified without
satisfying the requirements of Rule 23. In holding that it
could not, 5 the Court underscored that the Federal Rules of
Civil Procedure result from “an extensive deliberative
process involving . . . a Rules Advisory Committee, public
commenters, the Judicial Conference, [the Supreme] Court,
[and] Congress.” Id. at 620. The Court warned that “[t]he
text of a rule thus proposed and reviewed limits judicial
inventiveness” and admonished that “[c]ourts are not free to
amend a rule outside the process Congress ordered.” Id. The
lesson of Amchem Products is plain: “Federal courts . . .
lack authority to substitute for Rule 23’s certification criteria
a standard never adopted.” Id. at 622.
In sum, the language of Rule 23 does not impose a
freestanding administrative feasibility prerequisite to class
certification. Mindful of the Supreme Court’s guidance, we
decline to interpose an additional hurdle into the class
certification process delineated in the enacted Rule. See
Sandusky Wellness Ctr., LLC, v. Medtox Sci., Inc., 821 F.3d
992, 996 (8th Cir. 2016) (declining to recognize a “separate,
preliminary” requirement and, instead, “adher[ing] to a
rigorous analysis of the Rule 23 requirements”).
5
The Court recognized, however, that a settlement-only class—
which by definition will not proceed to trial—can be certified without
consideration of potential trial-management challenges under Rule
23(b)(3)(D). See Amchem Prods., 521 U.S. at 620.
BRISENO V. CONAGRA FOODS 11
B
We recognize that the Third Circuit does require putative
class representatives to demonstrate “administrative
feasibility” as a prerequisite to class certification. 6 See Byrd
6
Other circuits have cited the Third Circuit’s administrative
feasibility standard but have not actually imposed the standard in the
same manner as has the Third Circuit. The First Circuit has cited
Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013), for the proposition
that at the class certification stage, it must be anticipated that, by the time
a case reaches the liability and claims administration stages, there will
be an administratively feasible way to distinguish injured from uninjured
class members. See In re Nexium Antitrust Litig., 777 F.3d 9, 19–20 (1st
Cir. 2015). Requiring plaintiffs to propose a mechanism for eventually
determining whether a given class member is entitled to damages is
different from requiring plaintiffs to demonstrate an administratively
feasible way to identify all class members at the certification stage. In
Brecher v. Republic of Argentina, 806 F.3d 22 (2d Cir. 2015), the Second
Circuit mentioned administrative feasibility and cited Marcus v. BMW of
N. Am., LLC, 687 F.3d 583 (3d Cir. 2012), but administrative feasibility
played no role in the court’s decision, which instead turned on the
principle that a class definition must be objective and definite. Brecher,
806 F.3d at 24–26. The Fourth Circuit has reversed class certification
based in part on potential “administrative barrier[s]” to ascertaining class
members and cited the Third Circuit in doing so. See EQT Prod. Co. v.
Adair, 764 F.3d 347, 358–60 (4th Cir. 2014). But the “administrative
barriers” identified by the court in EQT sounded in definitional
deficiencies, numerosity questions, predominance problems, and
management difficulties, see id.—issues that all implicate other class
certification criteria. It is thus far from clear that the Fourth Circuit
requires an affirmative demonstration of administrative feasibility as a
separate prerequisite to class certification. Even the Third Circuit has
cabined its administrative feasibility rule in recent cases. See In re Cmty.
Bank of N. Va. Mortg. Lending Practices Litig., 795 F.3d 380, 396–97
(3d Cir. 2015) (distinguishing Carrera as addressing particular
“evidentiary problems”), cert. denied sub nom. PNC Bank v. Brian W.,
136 S. Ct. 1167 (2016); Byrd, 784 F.3d at 164 (clarifying that Carrera
did not create a “records requirement” at the class certification stage and
instead “only requires the plaintiff to show that class members can be
identified” (quoting Carrera, 727 F.3d at 308 n.2 (emphasis added))).
12 BRISENO V. CONAGRA FOODS
v. Aaron’s Inc., 784 F.3d 154, 162–63 (3d Cir. 2015);
Carrera v. Bayer Corp., 727 F.3d 300, 306–08 (3d Cir.
2013). The Third Circuit justifies its administrative
feasibility requirement not through the text of Rule 23 but
rather as a necessary tool to ensure that the “class will
actually function as a class.” Byrd, 784 F.3d at 162. The
Third Circuit suggests that its administrative feasibility
prerequisite achieves this goal by (1) mitigating
administrative burdens; (2) safeguarding the interests of
absent and bona fide class members; and (3) protecting the
due process rights of defendants. See Carrera, 727 F.3d at
307, 310. The Seventh Circuit soundly rejected those
justifications in Mullins v. Direct Digital, LLC, 795 F.3d 654
(7th Cir. 2015), and the Sixth Circuit followed suit, see Rikos
v. Procter & Gamble Co., 799 F.3d 497, 525 (6th Cir. 2015)
(citing Mullins in declining to follow Carrera). We likewise
conclude that Rule 23’s enumerated criteria already address
the interests that motivated the Third Circuit and, therefore,
that an independent administrative feasibility requirement is
unnecessary.
1
One rationale the Third Circuit has given for imposing
an administrative feasibility requirement is the need to
mitigate the administrative burdens of trying a Rule 23(b)(3)
class action. Courts adjudicating such actions must provide
notice that a class has been certified and an opportunity for
absent class members to withdraw from the class. See Wal-
Mart Stores, Inc. v. Dukes, 564 U.S. 338, 362 (2011); accord
FED. R. CIV. P. 23(c)(2)(B). The Third Circuit largely
justifies its administrative feasibility prerequisite as
necessary to ensure that compliance with this procedural
requirement does not compromise the efficiencies Rule
BRISENO V. CONAGRA FOODS 13
23(b)(3) was designed to achieve. 7 See Shelton v. Bledsoe,
775 F.3d 554, 562 (3d Cir. 2015); Carrera, 727 F.3d at 307.
But Rule 23(b)(3) already contains a specific,
enumerated mechanism to achieve that goal: the
manageability criterion of the superiority requirement. Rule
23(b)(3) requires that a class action be “superior to other
available methods for fairly and efficiently adjudicating the
controversy,” and it specifically mandates that courts
consider “the likely difficulties in managing a class action.”
FED. R. CIV. P. 23(b)(3)(D).
Moreover, as the Seventh Circuit has observed, requiring
class proponents to satisfy an administrative feasibility
prerequisite “conflicts with the well-settled presumption that
courts should not refuse to certify a class merely on the basis
of manageability concerns.” Mullins, 795 F.3d at 663; see
also In re Visa Check/MasterMoney Antitrust Litig.,
280 F.3d 124, 140 (2d Cir. 2001) (Sotomayor, J.) (holding
that refusal to certify a class “on the sole ground that it would
be unmanageable is disfavored and ‘should be the exception
rather than the rule’” (quoting In re S. Cent. States Bakery
Prods. Antitrust Litig., 86 F.R.D. 407, 423 (M.D. La.
1980))), overruled on other grounds by In re IPO Sec. Litig.,
471 F.3d 24 (2d Cir. 2006), and superseded by statute on
other grounds as stated in Attenborough v. Constr. & Gen.
Bldg. Laborers’ Local 79, 238 F.R.D. 82, 100 (S.D.N.Y.
2006). This presumption makes ample sense given the
variety of procedural tools courts can use to manage the
7
Because the notice requirement is mandatory only for Rule
23(b)(3) classes, the Third Circuit has declined to extend its
“ascertainability” prerequisite, which includes its administrative
feasibility requirement, to Rule 23(b)(2) classes. See Shelton, 775 F.3d
at 562–63. We understand ConAgra’s arguments here to be similarly
limited to Rule 23(b)(3) class actions.
14 BRISENO V. CONAGRA FOODS
administrative burdens of class litigation. For example, Rule
23(c) enables district courts to divide classes into subclasses
or certify a class as to only particular issues. FED. R. CIV. P.
23(c)(4), (5); see also In re Visa Check/MasterMoney,
280 F.3d at 141 (listing “management tools available to”
district courts).
Adopting a freestanding administrative feasibility
requirement instead of assessing manageability as one
component of the superiority inquiry would also have
practical consequences inconsistent with the policies
embodied in Rule 23. Rule 23(b)(3) calls for a comparative
assessment of the costs and benefits of class adjudication,
including the availability of “other methods” for resolving
the controversy. By contrast, as the Seventh Circuit has
emphasized, a standalone administrative feasibility
requirement would invite courts to consider the
administrative burdens of class litigation “in a vacuum.” See
Mullins, 795 F.3d at 663. That difference in approach would
often be outcome determinative for cases like this one, in
which administrative feasibility would be difficult to
demonstrate but in which there may be no realistic
alternative to class treatment. See id. at 663–64. Class
actions involving inexpensive consumer goods in particular
would likely fail at the outset if administrative feasibility
were a freestanding prerequisite to certification.
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. We lack authority to substitute
our judgment for theirs. See Amchem Prods., 521 U.S. at
620 (“[T]he Rule as now composed sets the requirements
[courts] are bound to enforce.”).
BRISENO V. CONAGRA FOODS 15
2
The Third Circuit has also justified its administrative
feasibility requirement as necessary to protect absent class
members and to shield bona fide claimants from fraudulent
claims.
A
With respect to absent class members, the Third Circuit
has expressed concern about whether courts would be able
to ensure individual notice without a method for reliably
identifying class members. See Byrd, 784 F.3d at 165;
Carrera, 727 F.3d at 307. We believe that concern is
unfounded, because neither Rule 23 nor the Due Process
Clause requires actual notice to each individual class
member.
Rule 23 requires only the “best notice that is practicable
under the circumstances, including individual notice to all
members who can be identified through reasonable effort.”
FED. R. CIV. P. 23(c)(2)(B) (emphasis added). In other
words, “[t]he rule does not insist on actual notice to all class
members in all cases” and “recognizes it might be impossible
to identify some class members for purposes of actual
notice.” Mullins, 795 F.3d at 665. And courts have long
employed cy pres remedies when some or even all potential
claimants cannot be identified. See Six (6) Mexican Workers
v. Ariz. Citrus Growers, 904 F.2d 1301, 1306 (9th Cir. 1990)
(“In a majority of class actions at least some unclaimed
damages or unlocated class members remain. The existence
of a large unclaimed damage fund, while relevant to the
manageability determination, does not necessarily make a
class action ‘unmanageable.’” (citation omitted)). The
notion that an inability to identify all class members
16 BRISENO V. CONAGRA FOODS
precludes class certification cannot be reconciled with our
court’s longstanding cy pres jurisprudence. See id.
Likewise, the Due Process Clause does not require
actual, individual notice in all cases. See Silber v. Mabon,
18 F.3d 1449, 1453–54 (9th Cir. 1994); see also Mullins,
795 F.3d at 665 (explaining that when individual notice by
mail is “not possible, courts may use alternative means such
as notice through third parties, paid advertising, and/or
posting in places frequented by class members, all without
offending due process”). Courts have routinely held that
notice by publication in a periodical, on a website, or even
at an appropriate physical location is sufficient to satisfy due
process. See, e.g., Hughes v. Kore of Ind. Enter., Inc.,
731 F.3d 672, 676–77 (7th Cir. 2013) (holding that sticker
notices on two allegedly offending ATMs, as well as
publication in the state’s principal newspaper and on a
website, provided adequate notice to class members in an
action challenging ATM fees); Juris v. Inamed Corp.,
685 F.3d 1294, 1319 (11th Cir. 2012) (holding that notice to
unidentified class members by periodical and website
satisfied due process).
Moreover, the lack-of-notice concern presumes that
some harm will inure to absent class members who do not
receive actual notice. In theory, inadequate notice might
deny an absent class member the opportunity to opt out and
pursue individual litigation. But in reality that risk is
virtually nonexistent in the very cases in which satisfying an
administrative feasibility requirement would prove most
difficult—low-value consumer class actions. Such cases
typically involve low-cost products and, as a result,
recoveries too small to incentivize individual litigation. At
the same time, an administrative feasibility requirement like
that imposed by the Third Circuit would likely bar such
actions because consumers generally do not keep receipts or
BRISENO V. CONAGRA FOODS 17
other records of low-cost purchases. Practically speaking, a
separate administrative feasibility requirement would
protect a purely theoretical interest of absent class members
at the expense of any possible recovery for all class
members—in precisely those cases that depend most on the
class mechanism. Justifying an administrative feasibility
requirement as a means of ensuring perfect recovery at the
expense of any recovery would undermine the very purpose
of Rule 23(b)(3)—“vindication of ‘the rights of groups of
people who individually would be without effective strength
to bring their opponents into court at all.’” Amchem Prods.,
521 U.S. at 617 (quoting Benjamin Kaplan, A Prefatory
Note, 10 B.C. INDUS. & COM. L. REV. 497, 497 (1969)).
B
The Third Circuit has also expressed concern that
without an administrative feasibility requirement,
individuals will submit illegitimate claims and thereby dilute
the recovery of legitimate claimants. See Carrera, 727 F.3d
at 310.
The fraud concern may be valid in theory, but “in
practice, the risk of dilution based on fraudulent or mistaken
claims seems low, perhaps to the point of being negligible.”
Mullins, 795 F.3d at 667. This is especially true in class
actions involving low-cost consumer goods. Why would a
consumer risk perjury charges and spend the time and effort
to submit a false claim for a de minimis monetary recovery?
And even if consumers might do so, courts “can rely, as they
have for decades, on claim administrators, various auditing
processes, sampling for fraud detection, follow-up notices to
explain the claims process, and other techniques tailored by
the parties and the court” to avoid or minimize fraudulent
claims. Id.
18 BRISENO V. CONAGRA FOODS
As to the dilution concern specifically, consistently low
participation rates in consumer class actions make it very
unlikely that non-deserving claimants would diminish the
recovery of participating, bona fide class members. 8 See id.
“It is not unusual for only 10 or 15% of the class members
to bother filing claims.” Christopher R. Leslie, The
Significance of Silence: Collective Action Problems and
Class Action Settlements, 59 FLA. L. REV. 71, 119 (2007).
Moreover, if certification is denied to prevent dilution,
deserving class members “will receive nothing, for they
would not have brought suit individually in the first place.”
Mullins, 795 F.3d at 668. As the Seventh Circuit put it,
“[w]hen it comes to protecting the interests of absent class
members, courts should not let the perfect become the enemy
of the good.” Id. at 666.
3
Finally, the Third Circuit has characterized its
administrative feasibility requirement as necessary to protect
the due process rights of defendants “to raise individual
challenges and defenses to claims.” Carrera, 727 F.3d at
307. The gravamen of this due process concern seems to be
8
Theoretically, if there were non-legitimate claimants, they would
dilute a cy pres fund. But that outcome would not impact bona fide
claimants, who would have already received distributions. See Nachshin
v. AOL, LLC, 663 F.3d 1034, 1036 (9th Cir. 2011) (explaining that, after
distributions have been made to any claimants, “[t]he cy pres doctrine
allows a court to distribute unclaimed or non-distributable portions of a
class action settlement fund to the ‘next best’ class of beneficiaries”
(emphasis added)). Nor would it affect the defendant, whose liability
will already have been determined. See Six (6) Mexican Workers,
904 F.2d at 1307 (“The use of cy pres or fluid recovery to distribute
unclaimed funds may be considered only after a valid judgment for
damages has been rendered against the defendant.”).
BRISENO V. CONAGRA FOODS 19
that defendants must have an opportunity to dispute whether
class members really bought the product or used the service
at issue. 9 See id. (stating that a defendant has a “due process
right to challenge the proof used to demonstrate class
membership”); Marcus v. BMW of N. Am., LLC, 687 F.3d
583, 594 (3d Cir. 2012) (“Forcing [defendants] to accept as
true absent persons’ declarations that they are members of
the class, without further indicia of reliability, would have
serious due process implications.”).
As an initial matter, defendants plainly can mount such
challenges as to the named class representatives. Class
representatives must establish standing by, for example,
showing that they bought the product or used the service at
issue. See Mazza v. Am. Honda Motor Co., Inc., 666 F.3d
581, 595 (9th Cir. 2012) (holding that class representatives
who allegedly paid more for or purchased a product due to a
defendant’s deceptive conduct have suffered an “injury in
fact” that establishes Article III standing); Bates v. United
Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007) (stating
that “[t]he plaintiff class bears the burden of showing” that
“at least one named plaintiff” meets the Article III standing
requirements). At the class certification stage, the class
9
Relatedly, ConAgra argues that an administrative feasibility
requirement would protect its ability to meaningfully assert a res
judicata defense in future actions asserting the same claims. But
determining whether a plaintiff in that future action was a member of this
class precluded from relitigating would be possible so long as the class
definition in this action was clear (and ConAgra does not dispute that it
is). If a future plaintiff were to assert a claim challenging the “100%
Natural” label on Wesson oil purchased during the class period in one of
the eleven states at issue, that would show that she was a member of the
class bound by the judgment. This would be so regardless of how
“administratively feasible” it was to prove the entirety of the
membership at the class certification stage in this action. See Geoffrey
C. Shaw, Note, Class Ascertainability, 124 YALE L.J. 2354, 2374–78
(2015).
20 BRISENO V. CONAGRA FOODS
representatives bear the burden of demonstrating
compliance with Rule 23. See Wal-Mart Stores, 564 U.S. at
350 (“A party seeking class certification must affirmatively
demonstrate his compliance with the Rule.”). And if the case
proceeds past the certification stage, the plaintiff class must
carry the burden of proving every element of its claims to
prevail on the merits. See id. at 351 n.6 (observing that, in a
securities fraud class action, “plaintiffs seeking 23(b)(3)
certification must prove that their shares were traded on an
efficient market, an issue that they will surely have to prove
again at trial in order to make out their case on the merits”
(citation omitted)); id. at 367 (“[T]he Rules Enabling Act
forbids interpreting Rule 23 to ‘abridge, enlarge or modify
any substantive right.’” (quoting 28 U.S.C. § 2072(b)));
Shady Grove Orthopedic Assocs., P.A., v. Allstate Ins. Co.,
559 U.S. 393, 408 (2010) (“A class action. . . . leaves the
parties’ legal rights and duties intact and the rules of decision
unchanged.”). Defendants can oppose the class
representatives’ showings at every stage. Indeed, in
litigating class certification, ConAgra took discovery of the
class representatives, challenged whether they bought
Wesson oil products, attacked their credibility, and disputed
whether they relied on the label at issue. As the case
proceeds, ConAgra will have further opportunities to contest
every aspect of Plaintiffs’ case.
Defendants will have similar opportunities to
individually challenge the claims of absent class members if
and when they file claims for damages. At the claims
administration stage, parties have long relied on “claim
administrators, various auditing processes, sampling for
fraud detection, follow-up notices to explain the claims
process, and other techniques tailored by the parties and the
court” to validate claims. Mullins, 795 F.3d at 667. Rule 23
specifically contemplates the need for such individualized
BRISENO V. CONAGRA FOODS 21
claim determinations after a finding of liability. See FED. R.
CIV. P. 23 advisory committee’s note to 1966 amendment
(explaining that certification may be proper “despite the
need, if liability is found, for separate determinations of the
damages suffered by individuals within the class”); see also
Levya v. Medline Indus. Inc., 716 F.3d 510, 513–14 (9th Cir.
2013) (reaffirming, after Comcast Corp. v. Behrend,
133 S. Ct. 1426 (2013), that the need for individualized
damages determinations after liability has been adjudicated
does not preclude class certification). ConAgra does not
explain why such procedures are insufficient to safeguard its
due process rights. 10
Given these existing opportunities to challenge
Plaintiffs’ case, it is not clear why requiring an
administratively feasible way to identify all class members
at the certification stage is necessary to protect ConAgra’s
due process rights. As the Seventh Circuit put it, “[t]he due
process question is not whether the identity of class members
can be ascertained with perfect accuracy at the certification
stage but whether the defendant will receive a fair
opportunity to present its defenses when putative class
members actually come forward.” Mullins, 795 F.3d at 670.
ConAgra may prefer to terminate this litigation in one fell
swoop at class certification rather than later challenging each
individual class member’s claim to recovery, but there is no
due process right to “a cost-effective procedure for
challenging every individual claim to class membership.”
Id. at 669.
10
District courts also have discretion to allow limited discovery
from absent class members if the particular circumstances of a specific
case justify it. See WILLIAM B. RUBENSTEIN, NEWBERG ON CLASS
ACTIONS § 9:13 (5th ed. 2013) (“[C]ertain forms of limited discovery
from absent class members may be permitted in certain circumstances.”).
22 BRISENO V. CONAGRA FOODS
If the concern is that claimants in cases like this will
eventually offer only a “self-serving affidavit” as proof of
class membership, it is again unclear why that issue must be
resolved at the class certification stage to protect a
defendant’s due process rights. If a Wesson oil consumer
were to pursue an individual lawsuit instead of a class action,
an affidavit describing her purchases would create a genuine
issue if ConAgra disputed the affidavit, and would prevent
summary judgment against the consumer. See Mullins,
795 F.3d at 669; accord FED. R. CIV. P. 56(c)(1)(A). Given
that a consumer’s affidavit could force a liability
determination at trial without offending the Due Process
Clause, we see no reason to refuse class certification simply
because that same consumer will present her affidavit in a
claims administration process after a liability determination
has already been made.
Moreover, identification of class members will not affect
a defendant’s liability in every case. For example, in this
case, Plaintiffs propose to determine ConAgra’s aggregate
liability by (1) calculating the price premium attributable to
the allegedly false statement that appeared on every unit sold
during the class period, and (2) multiplying that premium by
the total number of units sold during the class period. We
agree with the Seventh Circuit that, in cases in which
aggregate liability can be calculated in such a manner, “the
identity of particular class members does not implicate the
defendant’s due process interest at all” because “[t]he
addition or subtraction of individual class members affects
neither the defendant’s liability nor the total amount of
damages it owes to the class.” Mullins, 795 F.3d at 670; see
also Six (6) Mexican Workers, 904 F.2d at 1307 (“Where the
only question is how to distribute damages, the interests
affected are not the defendant’s but rather those of the silent
class members.”). The defendant will generally know how
BRISENO V. CONAGRA FOODS 23
many units of a product it sold in the geographic area in
question, and if the defendant is ultimately found to have
charged, for example, 10 cents more per unit than it could
have without the challenged sales practice, the aggregate
amount of liability will be determinable even if the identity
of all class members is not. The Third Circuit recognized as
much in Carrera. See Carrera, 727 F.3d at 310
(acknowledging but not addressing the argument that “[the
defendant’s] total liability” would not be “affected by
unreliable affidavits”).
For these reasons, protecting a defendant’s due process
rights does not necessitate an independent administrative
feasibility requirement.
C
In summary, the language of Rule 23 neither provides
nor implies that demonstrating an administratively feasible
way to identify class members is a prerequisite to class
certification, and the policy concerns that have motivated the
Third Circuit to adopt a separately articulated requirement
are already addressed by the Rule. We therefore join the
Sixth, Seventh, and Eighth Circuits in declining to adopt an
administrative feasibility requirement. See Sandusky
Wellness Ctr., LLC, v. Medtox Sci., Inc., 821 F.3d 992, 995–
96 (8th Cir. 2016) (recognizing that some courts have
imposed an administrative feasibility requirement, but
declining to do so); Rikos v. Procter & Gamble Co., 799 F.3d
497, 525 (6th Cir. 2015) (“We see no reason to follow
Carrera.”); Mullins v. Direct Digital, LLC, 795 F.3d 654,
658 (7th Cir. 2015) (rejecting the administrative feasibility
requirement as incompatible with Rule 23 and “the balance
of interests that Rule 23 is designed to protect”).
24 BRISENO V. CONAGRA FOODS
III
For the forgoing reasons, the district court did not err in
declining to condition class certification on Plaintiffs’
proffer of an administratively feasible way to identify
putative class members.
AFFIRMED.