In a detailed opinion published last week in Briseno v. Conagra Foods, Inc., No. 15-cv-55727 (9th Cir. Jan. 3, 2017), the Ninth Circuit held that 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 Court employed traditional canons of statutory construction to reason that the plain language of Rule 23(a) and Rule 23(b)(3), as well as the U.S. Supreme Court precedent of Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997) dictate that no separate “administrative feasibility” or “ascertainability” requirement need be satisfied in order to obtain class certification. As summarized by the Court, “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 certification process delineated in the enacted rule.”

In its opinion, the Court also expressly rejected the justifications provided by the Third Circuit – (1) mitigating administrative burdens; (2) safeguarding the interests of justice; and (3) protecting the due process rights of defendants – for an independent ascertainability requirement for class certification. In doing so, the Court concluded that “Rule 23’s enumerated criteria already address the interests that motivated the Third Circuit . . .”

Briseno involved a challenge to the “natural” labeling statements on Conagra’s Wesson Oil products based on the claim that the products allegedly contained unnatural genetically modified (GMO) ingredients. Like many defendants in other food labeling class actions, Conagra argued that none of the 11 proposed classes should have been certified, in part because plaintiffs could not demonstrate an administratively feasible method for identifying class members, and the only evidence of class membership would be unreliable affidavits claiming product purchases unsupported by any receipts or other reliable evidence that the products were actually purchased.

Several Circuit Courts of Appeal (the Second, Third, Fourth, and Eleventh Circuits) have held that ascertainability is a prerequisite to class certification, and have denied certification where plaintiffs have failed to demonstrate an administratively feasible and reliable way of identifying class members, most notably in consumer class action cases where absent class members lacked receipts for the products they purchased and where the challenged labeling statements differed on the product packaging.  The leading decision supporting defendants’ ascertainability arguments is the Third Circuit’s decision in Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013).  With the Briseno decision, the Ninth Circuit rejected Carrera and its progeny, and joined the Sixth, Seventh, and Eighth Circuit Courts of Appeal in holding that there is no separate ascertainability or “administrative feasibility” requirement for class certification.

The Briseno decision thus further deepens the divide between the Circuit Courts of Appeal on this important class certification issue.  We anticipate that the issue will be heard by the Supreme Court in the appropriate case.

Justice Werdegar, in a unanimous opinion released late Thursday, delivered news the Organic industry was hoping not to get: California consumers are not prohibited from challenging false organic food labels on the basis of federal preemption.

In Quesada v. Herb Thyme Farms Inc., S216305 (California Supreme Court Dec. 3, 2015), a consumer alleged that Herb Thyme Farms Inc. was selling herbs labeled organic, which were, in whole or in part, made up of conventionally grown herbs. The district court found the deceptive labeling action preempted by the Organic Foods Production Act of 1990, which regulates farming methods for organic-marketed produce and organic certification programs. The Court of Appeals affirmed that outcome, though by finding the claims preempted by implication.

The California Supreme Court disagreed. The silence of the Organic Foods Production Act on the issue of consumer protection lawsuits, and the fact that deceptive labeling claims are generally governed by state law, both weighed against the presumption of federal preemption. (Id. at *7.) The Court reasoned that the purpose of a clear national definition of organic production was so consumers could rely on organic labels and to curtail consumer fraud. (Id. at *2.) Because the state claims advance, rather than hinder, the Legislature’s purposes and objectives in the Organic Foods Production Act, the Court found that the state claims would not get in the way of the federal statutory scheme. (Id.)

Though consumers and Organic producers will have to wait and see what impact this decision will have on the way Organic food is marketed in California and the volume of Organic deceptive labeling claims filed in state courts, it is certain they will all be watching carefully.