Taking the Pulse of Ascertainability in the Ninth Circuit after Briseno v. ConAgra Foods, Inc.

10 October 2017 Consumer Class Defense Counsel Blog
Author(s): Jaikaran Singh John J. Atallah

Most federal courts have found that Rule 23 of the Federal Rules of Civil Procedure implicitly requires a showing that members of a proposed class are readily identifiable or “ascertainable” for a class to be certified. For some time now, however, there has been a split among the United States Courts of Appeals over what a party seeking class certification must demonstrate to meet the ascertainability requirement. On the one hand, the Third, Fourth, and Eleventh Circuits have held that a class cannot be certified unless it is sufficiently definite and plaintiff demonstrates an “administratively feasible” way for the court to determine whether a particular individual is a member of the class. On the other hand, the Second, Sixth, Seventh, and Eighth Circuits have found that there is no “administrative feasibility” prerequisite to class certification to demonstrate ascertainability.

Most recently, in Briseno v. ConAgra Foods, Inc., the Ninth Circuit joined the circuits that have rejected a showing of “administrative feasibility” at the class certification stage.[1] By ruling out a separate administrative feasibility requirement, some may wonder whether Briseno eases the class certification requirements in the Ninth Circuit.  While that may appear to be the case upon first glance, the change many have attributed to Briseno is exaggerated.  In fact, ascertainability considerations remain an important part of the class certification analysis in the Ninth Circuit, albeit as part of Rule 23’s enumerated requirements.

Circuit Split on the Ascertainability Standard

A party seeking class certification under Rule 23 is required to show that the prerequisites of numerosity, commonality, typicality, and adequacy are met.[2] In addition, a moving party must prove at least one of the following requirements under Rule 23(b): (1) separate actions by or against class individuals would create a risk of inconsistent outcomes or otherwise impede other class members’ claims; (2) declaratory or injunctive relief is appropriate based on the defendant’s acts with respect to the class broadly; or (3) common questions of law or fact predominate over questions affecting only individual members and a class action is the superior method of adjudicating the claims.[3] Further, in addition to these express requirements of Rule 23, most circuit courts have recognized an implicit requirement that a class be “ascertainable.”  In basic terms, ascertainability requires that a class be defined clearly­­­­­ in a way that members can be identified.  The standard for determining whether a class is ascertainable varies greatly by circuit.

The Third Circuit, which first addressed the issue, set the highest standard by requiring that (1) “the class is ‘defined with reference to objective criteria,’ and (2) there is a ‘reliable and administratively feasible mechanism for determining whether putative class members fall within the class definition.’”[4] The Third Circuit reasoned, “[i]f class members are impossible to identify without extensive and individualized fact-finding or ‘mini-trials,’ then a class action is inappropriate.”[5] The Eleventh Circuit followed suit,  adopting an ascertainability standard that requires “an administratively feasible method by which class members can be identified.”[6] Likewise, the Fourth Circuit considers whether there is a feasible, realistic, and manageable way to identify class members based on objective criteria.[7]

In contrast, the Seventh Circuit rejected an administrative feasibility prerequisite to class certification and requires only that a class be “defined clearly and based on objective terms” to satisfy the ascertainability requirement.[8] The Sixth Circuit has joined the Seventh Circuit, holding that a class is sufficiently defined where class members can be identified “by reference to objective criteria.”[9] The Eighth Circuit also has held that a class is ascertainable if membership can be determined using “objective criteria.”[10] The Second Circuit recently moved away from a prior decision that had applied an administrative feasibility prerequisite to hold that ascertainability “requires only that a class be defined using objective criteria that establish a membership with definite boundaries.”[11]

The Ninth Circuit Decision in Briseno v. ConAgra Foods

On January 3, 2017, in Briseno v. ConAgra Foods, Inc., the Ninth Circuit addressed the issue of whether there is an administrative feasibility prerequisite to class certification.[12]  In Briseno, plaintiff brought a class action against ConAgra Foods, challenging the “100% Natural” claim on the label of defendant’s Wesson cooking oil products.[13] Because consumers do not usually keep receipts or other proof of what cooking oils they bought, and likely do not remember the details surrounding the purchase, defendant opposed class certification on the ground that the proposed class was not ascertainable given that there was no administratively feasible way to identify class members.[14] The district court granted certification on the basis that it was sufficient for plaintiff to define the class by an objective criterion. ConAgra appealed under Rule 23(f).[15]

At the outset, the Ninth Circuit noted that it has never defined the term “ascertainability” and refrained from using it in the opinion because “courts ascribe widely varied meanings to that term.”[16] The court also explained that it has not adopted an “ascertainability” requirement for class certification.[17] As to whether there is an administrative feasibility requirement in the Ninth Circuit, the court held that “the language of Rule 23 neither provides nor implies that demonstrating an administratively feasible way to identify class members is a prerequisite to class certification.”[18] The court explained that, among other reasons,  applying an administrative feasibility prerequisite at the class certification stage would often be “outcome determinative” in cases involving low-cost consumer goods where purchasers do not keep receipts or other proof of purchase.[19]

What’s Left of Ascertainability in the Ninth Circuit?

Many have read Briseno’s express rejection of the administrative feasibility prerequisite, and observation that the Ninth Circuit has never adopted a separate, implicit “ascertainability” requirement, as effectively gutting any showing of ascertainability in the Ninth Circuit.[20] But such a narrow reading of Briseno misses a significant aspect of the decision considering the fundamental principles upon which the concept of ascertainability is based.

Taken together, the authorities on ascertainability describe a framework for ensuring, at the certification stage, that the proposed class is defined in a way that there is an acceptable means of determining who is, and who is not, a member of the putative class.[21] The Ninth Circuit in Briseno recognized that courts use the term “ascertainability” to refer to different class certification considerations related to the class definition and identifying proposed class members.[22] For instance, the Ninth Circuit acknowledged that beyond an administrative feasibility prerequisite, courts have used the word “ascertainability” to also describe whether the class is defined clearly, not vague or overbroad, using objective criteria, or if the class is a “fail-safe” class that is improperly defined based on ultimate merits determinations regarding liability.[23]

The Ninth Circuit cautioned that the “only issue” it was deciding in Briseno was whether “a class proponent must proffer an administratively feasible way to identify class members.”[24] On the broader subject of ascertainability, however, the court explained that it has addressed at the class certification stage the same types of class “definitional deficiencies” that other courts label as “ascertainability” issues “through analysis of Rule 23’s enumerated requirements.”[25] For example, the Ninth Circuit noted that problems with identifying class members can be raised through the “manageability criterion” of the superiority requirement of Rule 23(b)(3), which requires courts to consider “the likely difficulties in managing a class action.”[26] Likewise, the court cited to its decision in Torres v. Mercer Canyons Inc.,[27] which addressed the argument that the class definition was overbroad within the context of the predominance requirement of Rule 23(b)(3).  Accordingly, Briseno does not go so far as to eliminate the basic principle underlying the ascertainability requirement—namely, that a class be defined clearly with objective criteria that allows proposed class members to be identified without having to conduct individual inquiries.

Instead, a fair reading of Briseno supports the view that fundamental class identity and definitional considerations underlying the ascertainability requirement remain in place in the Ninth Circuit, but should be considered, at the class certification stage, in the context of the express requirements of Rule 23.  Recent Ninth Circuit district court decisions denying class certification after Briseno appear to follow this approach.[28]

The Central District of California’s recent decision in In re SFPP Right-Of-Way Claims[29] is instructive. The court denied class certification in a right-of-way suit by owners of land adjoining a railroad under which a pipeline was located.  In addition to determining that the class representatives could not meet the typicality requirement, the court explained that for each parcel in the putative class, it could not determine, on a class-wide basis, whether the parcel fit within the class definition without first determining individual ownership.[30] Citing Briseno, the court rejected plaintiffs’ argument that it was injecting an ascertainability requirement into the case.[31] Instead, the court found that the individual ownership issues were “a threshold liability concern that requires a legal determination” and therefore could not be handled by a claims administrator.[32] This finding related to the class identity is nestled within the court’s determination that the class representatives could not demonstrate predominance of common issues.[33]


In Briseno, the Ninth Circuit made clear that the policy considerations justifying the ascertainability requirement are sufficiently protected by the express requirements of Rule 23.  Rather than abandoning the class identity and definitional considerations underlying the ascertainability requirement, the Ninth Circuit preserved those issues to be raised at the class certification stage within the context of Rule 23’s enumerated requirements.  There is no doubt, however, that the standard for ascertainability will continue to evolve in the Ninth Circuit.  For instance, Martinez v. Flowers Foods, Inc. is a purported class action in which the district court for the Central District of California denied certification based on the class representatives’ failure to demonstrate “ascertainability.”[34] The Martinez case is presently pending before the Ninth Circuit, and its decision on appeal will likely have a direct effect on the ascertainability analysis.

[1] 844 F.3d 1121, 1133 (9th Cir. 2017).

[2] Fed. R. Civ. P. 23(a).

[3] Fed. R. Civ. P. 23(b).

[4] Hayes v. Wal-Mart Stores, Inc., 725 F.3d 349, 355 (3d Cir. 2013) (quoting Carrera v. Bayer Corp., 727 F.3d 300, 303-04 (3d Cir. 2013)).

[5] Id. (citing Marcus v. BMW of North America, LLC, 687 F.3d 583, 593 (3d Cir. 2012)).

[6] Karhu v. Vital Pharmaceuticals, Inc., 621 F. App’x 945, 947-48 (11th Cir. 2015).

[7] EQT Prod. Co. v. Adair, 764 F.3d 347, 358 (4th Cir. 2014).

[8] Mullins v. Direct Digital, LLC, 795 F.3d 654, 659-60 (7th Cir. 2015).

[9] Rikos v. Procter & Gamble Co., 799 F.3d 497, 525 (6th Cir. 2015).

[10] Sandusky Wellness Center, LLC v. Medtox Scientific, Inc., 821 F.3d 992, 996-97 (8th Cir. 2016).

[11] In re Petrobras Sec. Litig., 862 F.3d 250, 264 (2d Cir. 2017); but see Brecher v. Republic of Argentina, 806 F.3d 22, 24 (2d Cir. 2015) (“the touchstone of ascertainability is whether the class is sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member”)(internal quotation and citation omitted).

[12] 844 F.3d 1121 (9th Cir. 2017).

[13] Id. at 1123.

[14] Id. at 1123-24.

[15] Id. at 1124.

[16] Id. at 1124, fn. 3.

[17] Id.

[18] Id. at 1133.

[19] Id. at 1128.

[20] See e.g., Hoyte v. D.C., 2017 U.S. Dist. LEXIS 117682, at *8 fn. 3 (D.D.C. July 27, 2017) (citing to Briseno for the proposition that “[t]he ascertainability requirement . . . has been recently disavowed by four federal appellate courts.”).

[21] See, e.g., Sandusky Wellness Ctr., LLC v. ASD Specialty Healthcare, Inc., 863 F.3d 460, 472 (6th Cir. 2017) (explaining the significance of the ascertainability requirement in terms of its ability to resolve class “identity concerns”); Mullins v. Direct Digital, LLC, 795 F.3d 654, 659 (7th Cir. 2015) (“Rule 23 requires that a class be defined, and experience has led courts to require that classes be defined clearly and based on objective criteria.”); John v. Nat’l Sec. Fire & Cas. Co., 501 F.3d 443, 445 fn. 5 (5th Cir. 2007) (“There can be no class action if the proposed class is ‘amorphous’ or ‘imprecise.’”).

[22] Id. at 1124, fn. 3.

[23] Id.

[24] 844 F.3d at 1124, fn. 4.

[25] Id. (citing Probe v. State Teachers’ Ret. Sys., 780 F.2d 776, 780 (9th Cir. 1986), for the proposition that “a class must not be vaguely defined and must be ‘sufficiently definite to conform to Rule 23.’”).

[26] Id. at 1127-28.

[27] 835 F.3d 1125, 1136-39 (9th Cir. 2016).

[28] See e.g., Todd v. Tempur-Sealy Int’l, Inc., 2017 U.S. Dist. LEXIS 102385, *8-9 (N.D. Cal. June 30, 2017) (“The Court disagrees that its commonality analysis conflicts with Briseno’s rejection of the administrative feasibility requirement.”); In re SFPP Right-Of-Way Claims, 2017 U.S. Dist. LEXIS 85973 (C.D. Cal. May 23, 2017) (denying class certification because individual class member identity issues regarding parcel ownership undercut the predominance requirement); see also Sandusky Wellness Ctr., LLC, 863 F.3d at 473-74 (affirming the district court’s denial of class certification because plaintiff “flunk[ed] the superiority requirement of Rule 23(b)(3)” by failing to present a manageable means of identifying class members).

[29] No. SACV 15-00718 JVS (DFMx), 2017 U.S. Dist. LEXIS 85973 (C.D. Cal. May 23, 2017).

[30] Id. at *37-38.

[31] Id. at *39.

[32] Id. at *39-40.

[33] Id. at *40.

[34] See Martinez v. Flowers Foods, Inc., No. 2:15-CV-05112 RGK (EX), 2016 U.S. Dist. LEXIS 188990 (C.D. Cal. Sept. 8, 2016).

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