Earlier this year, the Ninth Circuit held that a putative class is not required to demonstrate an “administratively feasible” way to determine class membership at the certification stage, joining the Sixth, Seventh and Eighth Circuit’s interpretation of Federal Rule of Civil Procedure 23. But what may that decision mean for defendants? Shook, Hardy & Bacon Associate Siena Caruso explains the potential impact in her review of the Ninth Circuit’s decision in “New Year’s Resolution – Ninth Circuit Trims Down Class Certification Requirements in Briseno v. ConAgra Foods, 844 F.3d 1121 (9th Cir. 2017),” in the Federal Bar Association/Orange County Newsletter, Spring-Summer 2017.
Noting a split among federal appellate circuits on the interpretation of the Rule, a Central District of California judge granted a class motion for certification in the food labeling and deceptive marketing case, saying an administrative feasibility requirement “effectively prohibit[s] class actions involving low priced consumer goods – the very type of claims that would not be filed individually – thereby upending ‘[t]he policy at the very core of the class action mechanism.’” The Ninth Circuit affirmed, holding that Rule 23 does not provide or imply that administrative feasibility is a prerequisite to class certification.
However, Caruso notes that the Third Circuit has ruled the opposite way, and the issue may be one the Supreme Court will need to address in future terms. In the meantime, practitioners in the Ninth Circuit and elsewhere may need to reevaluate class action trial strategies – by staying in state courts where administrative feasibility is still required, or dealing with increased pressures to settle such cases.