One of the first significant class action appellate decisions of 2017 was issued this week. In Briseno v. ConAgra Foods, Inc., No. 15-55727 (9th Cir. Jan. 3, 2017), the Ninth Circuit held that Rule 23 does not require that it be “administratively feasible” to identify class members in order for a class to be certified. The opinion is worth reading not only on that important point but also because it discusses a number of key issues that are hotly contested in class certification proceedings. In extensive dicta, the Ninth Circuit suggests approaches to conducting class litigation that defendants will undoubtedly need to challenge strongly in future cases.

The case alleged that Wesson cooking oils are improperly labeled as “100% Natural,” similar to numerous class actions challenging similar labels on food products. Given that consumers do not usually maintain records of what cooking oils they purchased, when they bought them or what was on the label, the defendant challenged whether the proposed class was sufficiently ascertainable or identifiable.

The Ninth Circuit held that there was no such “administratively feasible” requirement, agreeing with the Sixth and Seventh Circuits and disagreeing with the Second and Third Circuits on this point, likely increasing the chances of Supreme Court review. The Ninth Circuit focused on the absence of any “administratively feasible” requirement in the text of Rule 23, although Rule 23 presumes that there is a “class” and the members of the “class” must be identifiable for various purposes, including, for example, notice and the opportunity to opt out (under Rule 23(b)(3)), discovery (if the court permits discovery from the class), and the enforceability of any judgment. The Ninth Circuit recognized that these issues will bear on manageability and other class certification requirements, but concluded they are not a separate, independent requirement.

The court also suggested, in dicta, various approaches that might be taken in some cases to get around these problems if the district court otherwise finds class certification appropriate – such as notifying a difficult-to-identify class by publication and a website, conducting a trial for purposes of determining some type of vague aggregate liability, then asking class members to submit affidavits and claim forms (which the Ninth Circuit suggested might have a 10-15% response rate), and then (unless the defendant at some point agrees to a settlement) conducting what could be many thousands of individual trials on what the court describes as “damages,” but would actually focus on whether there is any liability to the class member.

Here are a few thoughts I had on Briseno, with a focus on how defendants can defend class actions in the Ninth Circuit and other circuits that have rejected an “administratively feasible” type of ascertainability requirement:

  • Other Ways to Challenge Class Definitions: There are lots of ways to challenge the class definition in addition to whether the class is administratively feasible. In many instances, the proposed class is overbroad and includes persons who have no injury and no standing. The proposed class may be so vague that putative class members would not be able to readily determine whether they are part of it, or a court may have difficulty determining at trial, or in a post-trial claim procedure or in enforcing a final judgment, who is in the class. The proposed class also might be an improper fail-safe class, where the only people who are in the class as defined would be automatically entitled to relief.
  • Manageability: The Ninth Circuit concluded that imposing a separate “administrative feasibility” requirement would render the manageability requirement superfluous, and that such concerns should be addressed in the context of manageability, with a cost-benefit type analysis. (Slip op. at 13-14.) To effectively press the case on manageability, defendants may want to focus on any notice plan and trial plan provided in Plaintiffs’ motion for class certification, or the absence of such a plan. Defendants might also demonstrate affirmatively what problems would be presented in giving notice, and provide some detail on how they would intend to try the defense case with individualized evidence.
  • Rules Enabling Act: The Rules Enabling Act is something that I think defendants should be increasingly focusing on. This may be what defendants should really urge the Supreme Court to address, even more than ascertainability. The Ninth Circuit recognized that, under the Rules Enabling Act, the parties must have the same rights in a class proceeding that they have in an individual suit. The Supreme Court made clear last year that it would “violate[s] the Rules Enabling Act [to] giv[e] plaintiffs and defendants different rights in a class proceeding than they could have asserted in an individual action.” Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1048 (2016). In Briseno, the Ninth Circuit noted that “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.” (Slip op. at 20.) Under the Rules Enabling Act and Tyson Foods, a defendant can make a strong argument that it should have the right to do all of these things with respect to each member of the putative class. The Ninth Circuit suggested that ConAgra could do this in individual damages proceedings after liability is established. But these issues are not merely damages issues. They go to whether there is any liability at all to the putative class member — if they did not buy the product, they are not credible or they did not rely on the label. There is no question that the defendant would be entitled to take discovery on and try those issues in an individual case. It seems to contravene the Rules Enabling Act for a court to severely limit those rights simply because it wants to hear the proceeding as a class action. The Ninth Circuit’s suggestion in a footnote that a court can allow “limited discovery from absent class members” (Slip op. at fn. 10) seems clearly insufficient. How can a defendant adequately determine credibility or reliance, for example, without deposing each individual class member?

Ultimately, a defendant faced with the type of class proceeding that the Ninth Circuit suggested in its extensive dicta may need to take the position that it will try thousands (or tens or hundreds of thousands, or more) of individual claims in the “damages” proceedings, will insist on a jury trial for each one (under the Seventh Amendment), and will seek to take pre-trial discovery in each and every one of those (and for a court to distribute any money cy pres to people who do not come forward would be contrary to due process). If that type of proceeding is what Rule 23 actually provides for, as the Ninth Circuit’s dictum seems to suggest, then a district court would have to figure out how it can actually conduct that many trials.

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Photo of Wystan Ackerman Wystan Ackerman

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you…

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you have something to say.  For those looking for my detailed law firm bio, click here.  If you want a more light-hearted and hopefully more interesting summary, read on:

People often ask about my unusual first name, Wystan.  It’s pronounced WISS-ten.  It’s not Winston.  There is no “n” in the middle.  It comes from my father’s favorite poet, W.H. (Wystan Hugh) Auden.  I’ve grown to like the fact that because my name is unusual people tend to remember it better, even if they don’t pronounce it right (and there is no need for anyone to use my last name because I’m always the only Wystan).

I grew up in Deep River, Connecticut, a small town on the west side of the Connecticut River in the south central part of the state.  I’ve always had strong interests in history, politics and baseball.  My heroes growing up were Abraham Lincoln and Wade Boggs (at that time the third baseman for the Boston Red Sox).  I think it was my early fascination with Lincoln that drove me to practice law.  I went to high school at The Williams School in New London, Connecticut, where I edited the school newspaper, played baseball, and was primarily responsible for the installation of a flag pole near the school entrance (it seemed like every other school had one but until my class raised the money and bought one at my urging, Williams had no flag pole).  As a high school senior, my interest in history and politics led me to score high enough on a test of those subjects to be chosen as one of Connecticut’s two delegates to the U.S. Senate Youth Program, which further solidified my interest in law and government.  One of my mentors at Williams was of the view that there were far too many lawyers and I should find something more useful to do, but if I really had to be a lawyer there was always room for one more.  I eventually decided to be that “one more.”  I went on to Bowdoin College, where I wrote for the Bowdoin Orient and majored in government, but took a lot of math classes because I found college math interesting and challenging.  I then went to Columbia Law School, where I was lucky enough to be selected as one of the minions who spent their time fastidiously cite-checking and Blue booking hundred-plus-page articles in the Columbia Law Review.  I also interned in the chambers of then-Judge Sonia Sotomayor when she was a relatively new judge on the Second Circuit, my only connection to someone who now has one-ninth of the last word on what constitutes the law of our land.  I graduated from Columbia in 2001, then worked at Skadden Arps in Boston before returning to Connecticut and joining Robinson+Cole, one of the largest Connecticut-based law firms.  At the end of 2008, I was elected a partner at Robinson+Cole.

I’ve worked on class actions since the start of my career at Skadden.  Being in the insurance capital of Hartford, we have a national insurance litigation practice and I was fortunate to have the opportunity to work on some prominent class actions arising from the 2004 hurricanes in Florida and later Hurricane Katrina, including cases involving the applicability of the flood exclusion, statutes known as valued policy laws, and various other issues.  My interest and experience in class actions gradually led me to focus on that area.

In Connecticut courts I’ve defended various kinds of class actions that go beyond insurance, including cases involving products liability, securities, financial services and consumer contracts.

My insurance class action practice usually takes me outside of Connecticut.  I’ve had the pleasure of working on cases in various federal and state courts and collaborating with great lawyers across the country.  While class actions are an increasingly large part of my practice, I don’t do exclusively class action work.  The rest of my practice involves litigating insurance coverage cases, often at the appellate level.  That also frequently takes me outside of Connecticut.  A highlight of my career thus far was working on Standard Fire Ins. Co. v. Knowles, the U.S. Supreme Court’s first Class Action Fairness Act case.  I was Counsel of Record for Standard Fire on the cert petition, and had the pleasure of working with Ted Boutrous on the merits briefing and oral argument.

I started this blog because writing is one of my favorite things to do and I enjoy following developments in class action law, writing about them and engaging in discussion with others who have an in interest in this area.  It’s a welcome break from day-to-day practice, keeps me current, broadens my network and results in some new business.

When I’m not at my desk or flying around the country trying to save insurance companies from the plaintiffs’ bar, or attending a conference on class actions or insurance litigation (for more on those, see the Seminars/Programs page of this blog), I often can be found playing or reading with my young daughter, helping my wife with her real estate and mortgage businesses, reading a book about history or politics, or watching the Boston Red Sox (I managed to find bleacher seats for Game 2 of the 2004 World Series when Curt Schilling pitched with the bloody sock).  When the weather is good I also love to take the ferry to Block Island, Rhode Island and ride a bike or walk the trails there. If you go, I highly recommend the Clay Head Trail.