Class Certification Does Not Require That Class Member Identification Be “Administratively Feasible."

Jocelyn D. Larkin, Executive Director, The Impact Fund.

Jocelyn D. Larkin, Executive Director, The Impact Fund.

Ninth Circuit Affirms that Cy Près Remedies May Be Used Where Class Members Cannot be Identified.


Most people do not retain receipts for the myriad of food items and inexpensive consumer goods that they purchase each year.  But, should this entirely understandable fact of modern life provide a license to corporations to defraud consumers who buy these products?  The Third Circuit’s 2013 decision in Carrera v. Bayer Corp., 727 F.3d 300, 306-08 (3d Cir. 2013), provided just that get-out-of-jail free card by prohibiting the use of the class action mechanism to challenge such fraud unless it could be shown that the injured consumers could be identified in some way other than through their own testimony.

The Carrera decision was rooted in – but greatly extended -- the “implied” requirement of Rule 23 that a class be defined in such a way that one could know who was in the class, sometimes called “ascertainability.” The Carrera decision was controversial because it imposed a threshold requirement that a class could only be certified if it was “administratively feasible” to identify the class members, i.e. through business records.  This new hurdle has the effect of preventing class certification in the circumstances in which a class action is most needed -- where the small amount of the loss would never justify an individual lawsuit.

In Briseno v. Conagra Foods, 2017 WL 24618 (9th Cir. January 3, 2017), the Ninth Circuit expressly rejected the Carrera “administrative feasibility” requirement. In doing so, the Ninth Circuit joined the Sixth, Seventh and Eighth Circuits. See Rikos v. Procter & Gamble Co., 799 F.3d 497, 525 (6th Cir. 2015); Mullins v. Direct Digital, LLC, 795 F.3d 654 (7th Cir. 2015); Sandusky Wellness Ctr., LLC v. Medtox Sci., Inc., 821 F.3d 992, 995-96 (8th Cir. 2016). 

The underlying case in Briseno, brought on behalf of consumers of Wesson oil, alleged that the product was falsely labeled “100% natural.” The district court had certified eleven statewide classes and defendant appealed the order. ConAgra argued that plaintiffs failed to show an administratively feasible way to identify class members, who do not generally save grocery receipts and would be unlikely to recall the details of individual purchases of low cost cooking oil.

The Ninth Circuit opinion (authored by Judge Friedland) began its analysis with the text of Rule 23.  It observed that the plain language of Rule 23 enumerates the “prerequisites” for certification and, significantly, that list does not include administrative feasibility.  Further, because the rule already includes a criterion mandating an assessment of manageability, imposing a separate administrative feasibility requirement would render that criterion “largely superfluous.”  Finally, the panel noted that the Supreme Court has warned that district courts should not alter the requirements of the federal rules, which have been carefully crafted through the “extensive deliberative process” of the Civil Rules Committee.    

As important as the Court’s reading of the text is its analysis (and debunking) of the four policy rationales underlying the Third Circuit’s Carrera decision.  The panel’s analysis drew heavily on the Seventh Circuit’s opinion in Mullins, supra.

·      Administrative Burden - While the Third Circuit expressed concern about mitigating the administrative burden of a Rule 23 case, the Briseno panel observed that that concern would be addressed as part of the manageability factor, and that the rule envisions a balancing of the costs and benefits of class treatment.  If burden were considered “in a vacuum,” class actions for inexpensive products would inevitably fail “at the outset.”

·      Protection of Absent Class Members – The Third Circuit reasoned that, if they could not be identified, class members would not receive individual notice of the case. The Briseno panel observed that Rule 23(c) does not require actual notice, only the best notice “that is practicable under the circumstances.”  Other forms of notice, for example through publication, can satisfy Due Process. And, where class members cannot be located, district courts may distribute unclaimed funds consistent with “our court’s longstanding cy pres jurisprudence.”  Finally, lack of notice would only matter if a class member planned to opt out and file an individual lawsuit, a highly unlikely event where losses are very small.  

·      Dilution of Recovery Resulting from False Claims – The panel also refuted the contention that, without written proof, illegitimate claims would dilute the recovery of legitimate ones.  The court noted that, given the small size of recoveries, it is unlikely that anyone would risk a perjury charge for a tiny recovery.  Claims administrators also have auditing techniques to ferret out such false claims. Finally, dilution is unlikely because typically the fund is not fully distributed. 

·      Due Process Rights of Defendants - The Third Circuit worried that a defendant would be denied an opportunity to dispute that a class member actually purchased the product.  The Ninth Circuit rejected that rationale as well, underscoring that the defendant can challenge plaintiffs’ showing at every stage of the case, including at the claims stage.  Further, where the case is one that permits the determination of aggregate liability to the class, defendant has no due process interest in the identity of class members (or possibly unreliable affidavits) since that information will not affect either its liability or the total amount of damages it owes.

The Briseno decision provides an important backstop for consumer class actions in the Ninth Circuit.  The more interesting question is whether the U.S. Supreme Court will take up the circuit split with this or another case since, as the Briseno decision notes, even the Third Circuit has “cabined” the administrative feasibility rule in cases since Carrera.  


McCrory's Somber Legacy - Discrimination in Cinemascope

McCrory's Somber Legacy - Discrimination in Cinemascope


Earlier this summer, voting rights advocates won a stunning string of victories in federal courts across the country.   In one decision after another, courts struck down voting restrictions enacted by state legislatures emboldened by the Supreme Court’s myopic Shelby County decision. 

Of particular note was the Fourth Circuit’s decision in North Carolina State Conference of the NAACP v. McCrory, a must-read for all civil rights litigators...

Speaking Out Against Unlawful Sex Stereotyping of Transgender People in North Carolina’s H.B. 2

Earlier this year, the North Carolina legislature passed a sweeping anti-LGBT bill, H.B. 2, which requires public schools and agencies to discriminate against transgender people by prohibiting them from using sex-segregated restrooms according to their gender identity. Plaintiffs Joaquín Carcaño, the ACLU of North Carolina, and others filed a lawsuitchallenging H.B. 2 as unlawful discrimination against transgender individuals under the Equal Protection and Due Process Clauses and Title IX of the Education Amendments of 1972.

Ninth Circuit: "Fortuitous Non-Injury" Does Not Defeat Class Certification

The recent appellate decision affirming class certification, Ruiz Torres v. Mercer Canyons Inc.No. 15-35615 (9th Cir. Aug. 31, 2016), written by Judge Milan Smith, skillfully addresses the issues of informational injury, non-injured class members, class definition, and aggregate damages while scrupulously declining defendant's invitation to engage the underlying merits. 

A Big Year for Class Actions in SCOTUS (2016 Term Review)

The Supreme Court docket this past term had class action practitioners holding their breath. Over the last five years, the Court has limited access to class actions in cases including Wal-Mart Stores, Inc. v. DukesAT&T Mobility LLC v. Concepcion, and American Express Co. v. Italian Colors Restaurant. This term, the Court took on an unprecedented four class action cases. The outcome is fascinating and has many ramifications for the ability of class actions to serve as a vehicle for groups of people—including workers, minorities, and consumers—to hold corporations and the government accountable.

Supreme Court of California Approves Common Fund Fees

In a unanimous decision this morning, the California Supreme Court affirmed that attorneys’ fees in a class action may be calculated as a percentage of the common fund created by a settlement or judgment. Laffitte v. Robert Half Int’l, S222996 (August 11, 2016).  

In determining the appropriate percentage, the trial court may -- but is not required to – conduct a lodestar cross-check.  The trial court also has the discretion, in the first instance, to determine which fee calculation methodology to use (i.e. common fund or lodestar-multiplier) in any particular case.  The decision has a useful discussion of the history and criticisms of each method. 


Earlier this year, statistics made headlines as the subject of a new Supreme Court decision, Tyson Foods, Inc. v. Bouaphakeo. As Jocelyn Larkin described in her earlier blog post, employees working in the kill, cut, and retrim departments of a Tyson Foods pork processing plant in Iowa alleged that they had not been paid overtime for the time they spent putting on and taking off the protective gear required to do their dangerous jobs. At trial, the employees relied on “representative evidence” to prove liability – an observational study that resulted in an estimated average “donning and doffing” time for each department. A jury awarded the class of employees about $2.9 million in unpaid wages.

The Supreme Court accepted Tyson’s appeal and agreed to consider two questions:

Third Circuit Rules Plaintiff Must Have “a fair opportunity” to move for class cert

Good news for plaintiffs in a Third Circuit decision on mootness in a Rule 23(b)(2) injunctive relief class action, Richardson v. Bledsoe, No. 15-2876 (3d Cir. July 15, 2016). This case presents a variation of the Campbell-Ewald named plaintiff pick-off strategy in a systemic reform case.  It recognizes a “picking off” exception to mootness in a class action where the individual claim for relief is “acutely susceptible to mootness” by the actions of the defendant. This one takes a bit of explaining.  

An Insider's Guide To The Impact Fund Class Action Training Institute

Last October, shortly after I joined the Impact Fund as its Litigation Fellow, I had the opportunity to attend the Impact Fund’s Training Institute in Chicago. Having had some exposure to class action litigation during my clerkship, but no experience actually litigating a class action, I had a lot to learn and was excited to dive in and learn as much as I could over the course of the training.

Cy Près 101

In modern litigation, the term “cy près” refers to the act of designating unclaimed class funds to public interest organizations whose work furthers the interests of the class and is tied to the purpose of the litigation. But the concept of cy près originated long ago in the law of charitable trusts in courts of equity. Today, cy près is generally used only after class funds have been distributed to class members, but it has become impossible or impracticable to distribute some remaining portion of the class funds, such as in the following situations:

Economic Justice: Resisting Zombie Claims by SSA

Imagine receiving a notice from the IRS that your long-awaited tax refund has been withheld by the Social Security Administration (“SSA”) because you were once paid Social Security benefits and SSA has identified a benefit overpayment that occurred over a decade ago — or one of your parents was once paid Social Security benefits on your behalf over a decade ago and SSA identified an overpayment. If the withheld amount was $2,100, would you go out and find an attorney to represent you in an individual case against the SSA?

Civil Rules Committee Takes On Serial Objectors with Proposed Rule 23 Changes

For 18 months, we have been tracking the work of the Advisory Committee on Civil Rules, and specifically its Rule 23 subcommittee, which has been evaluating a range of proposals to amend the federal class action rule.  That work was recently completed and the Committee will soon set a schedule for public comment on a series of draft amendments.

The good news is that the Rule 23 proposals are modest and are not likely to trigger significant opposition like the firestorm that accompanied the discovery rule changes. 

"Concrete" Still Not Set In Spokeo Decision

The Supreme Court yesterday decided the third of three class actions cases from this term that we have been closely watching, Spokeo Inc. v. Robins.   A few observations.

Phew!  The Court did not adopt the most extreme of defense arguments that Congress cannot authorize statutory damages where the victim cannot prove that he or she actually lost money as a result of corporate malfeasance.

Defending the use of Class Actions for Enforcement of Civil Rights Laws

It's a fact of life that long-awaited vacations can sometimes be spoiled by an ill-timed rain storm, lost luggage, or a bad reaction to that local street food.  But discrimination?

Plaintiffs Ann Cupolo-Freeman, Ruthee Goldkorn, and Julie Reiskin use wheelchairs for mobility and were denied equal access to hotel transportation services at hotels owned by Defendant Hospitality Properties Trust (“HPT”). 

New Teeth For California's 'Suitable Seating' Law

On April 4, the California Supreme Court unanimously decided Kilby v. CVS, which adopted a very worker-friendly construction of the state’s century-old “suitable seating law,” and will help ensure that, going forward, seating cases will proceed under California's Private Attorney General Act (PAGA) on a broad class-wide or representative action basis.

Since 1911, California law has guaranteed seats to employees “when the nature of the work reasonably permits the use of seats” (although until 1973, only women were protected). 

Standing Up for the Full Promise of Equal Employment Opportunity

Victor Guerrero applied twice for employment as a Corrections Officer with the California Department of Corrections and Rehabilitation (“CDCR”). Both of his applications were subject to a multi-step review process, one step of which was a background investigation questionnaire.  Since 2009, the background investigation questionnaire has included the following question: “Have you ever had or used a social security number other than the one you used on this questionnaire?” This question, known as Question 75, exclusively eliminated Latino applicants—including Mr. Guerrero—from the review process. Mr. Guerrero filed suit, alleging Question 75 has a disparate impact on Latino applicants.

SCOTUS Denies Cert in Wal-Mart Stores v. Braun

On April 4, the U.S. Supreme Court denied cert in Wal-Mart Stores v. Braun, a wage and hour class action brought on behalf of 187,000 hourly Wal-Mart workers in Pennsylvania.  The case was tried in the Pennsylvania state court in 2006, and Michael Donovan and his team obtained a $188 million verdict for the workers. The heart of the appellate dispute was Wal-Mart’s decision to stop keeping records of wage and hour violations.

SCOTUS OKs Statistical Evidence in Tyson v. Bouaphakeo Decision

Today, the US Supreme Court issued its long-anticipated decision in Tyson Foods Inc. v. Bouaphakeo et al, and it is very good for plaintiffs. The court finds that representative or statistical proof is just like other evidence:  “Whether a representative sample may be used to establish classwide liability will depend on the purpose for which the sample is being introduced and on the underlying cause of action.”

THE Underground Guide To Class Action Slang (PART TWO)

The 2016 Impact Fund Class Action Conference held on February 18/19, gathered class action practitioners and impact litigators from across the country for two days of brainstorming, war stories, and colorful lemon-based metaphors. It also reminded me of a few more terms to add to our growing Impact Fund Class Action Dictionary...

The Underground Guide To Class Action Slang (part One)

Over the past half-century, class actions have changed the world for the better:  desegregating schools and workplaces, ensuring clean air and water, and exposing unsafe products and corporate fraud.  But, have you considered their impact on the English language?  Class actions have spawned some inventive slang, which can be bewildering to practitioners new to the field, much less to ordinary folks.  We’re here to help with this, the Impact Fund Class Action Dictionary.