In Briseno v. ConAgra Foods, Inc., ___ F.3d ___ (9th Cir. Jan. 3, 2017), the Ninth Circuit held that Rule 23 does not require plaintiffs to establish an “administratively feasible” means of identifying putative class members, expressly rejecting decisions like Carrera v. Bayer Corp., 727 F.3d 300, 306-08 (3d Cir. 2013). But the decision goes well beyond administrative feasibility. Plaintiffs counsel will argue that the decision also endorses aggregate liability and damages determinations in consumer fraud cases to be followed by a “claims process” overseen by claims administrators. The impact of the decision remains to be seen, but Briseno is bad news for class action defendants, as it likely will make class certification easier in the Ninth Circuit. This article discusses the Briseno decision and offers key takeaways for future cases.
The Ninth Circuit’s Briseno Decision
The Briseno case is one of many class actions challenging food labels. These cases have become substantially more popular in the plaintiffs’ bar, because they do not usually present any opportunity for defendants to move them into arbitration based on class action waivers in arbitration agreements. Customers who buy off the shelf do not agree to arbitrate their claims.
The Briseno plaintiffs claim that a “100% Natural” label is false or misleading because Wesson oils are made from bioengineered ingredients, which the plaintiffs argue are not “natural.”
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