844 F.3d 1121 (9th Cir. 2017), 15-55727, Briseno v. ConAgra Foods, Inc.

Docket Nº:15-55727
Citation:844 F.3d 1121, 96 Fed.R.Serv.3d 762
Opinion Judge:Michelle T. Friedland, Circuit Judge
Party Name:ROBERT BRISENO, individually and on behalf of all others similarly situated, Plaintiff-Appellee, v. CONAGRA FOODS, INC., Defendant-Appellant
Attorney: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)...
Judge Panel:Before: William A. Fletcher, Morgan B. Christen, and Michelle T. Friedland, Circuit Judges.
Case Date:January 03, 2017
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1121

844 F.3d 1121 (9th Cir. 2017)

ROBERT BRISENO, individually and on behalf of all others similarly situated, Plaintiff-Appellee,

v.

CONAGRA FOODS, INC., Defendant-Appellant

No. 15-55727

United States Court of Appeals, Ninth Circuit

January 3, 2017

Argued and Submitted September 12, 2016, San Francisco, California

Page 1122

Appeal from the United States District Court for the Central District of California. D.C. No. 2:11-cv-05379-MMM-AGR. Margaret M. Morrow, District Judge, Presiding.

AFFIRMED.

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.

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.

Before: William A. Fletcher, Morgan B. Christen, and Michelle T. Friedland, Circuit Judges.

OPINION

Page 1123

Michelle T. 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 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, 194 L.Ed.2d 175 (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 natural." ConAgra manufactures, markets, distributes, and sells Wesson products.

Plaintiffs filed putative class actions asserting state-law claims against ConAgra

Page 1124

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

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).

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

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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 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, 109 S.Ct. 439, 102 L.Ed.2d 445 (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. United States Postal Serv., 546 U.S. 481, 486, 126 S.Ct. 1252, 163 L.Ed.2d 1079 (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...

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