In Briseno v. ConAgra Foods, Inc., ___ F.3d ___ (9th Cir. Jan. 3, 2017), the Ninth Circuit held that Rule 23 does not require plaintiffs seeking class certification to prove "that there is an 'administratively feasible' means of identifying absent class members." Slip op. at 1. As the opinion explains,
[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.
Id. at 4.
In so holding, the Ninth Circuit explicitly parted company with Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013), as did the Sixth, Seventh and Eighth Circuits before it. See slip op. at 11-12 (citing Sandusky Wellness Ctr., LLC, v. Medtox Sci., Inc., 821 F.3d 992 (8th Cir. 2016); Rikos v. Procter & Gamble Co., 799 F.3d 497 (6th Cir. 2015); Mullins v. Direct Digital, LLC, 795 F.3d 654 (7th Cir. 2015)).
In September, I reported on the oral argument in this case. It is false advertising class action alleging that the defendant mislabeled its Wesson Oil products as "100% Natural."