Ascertainability Circuit Split
In recent years, a circuit split has developed over the existence of an “ascertainability” requirement for class certification in federal court. The Second, Third, Fourth, Fifth, and Eleventh Circuits have looked beyond the explicit language of Rule 23(b)(3) to fashion an additional implied requirement that plaintiffs must demonstrate a class is ascertainable. For example, in Carrera v. Bayer Corp., the Third Circuit expressed concerns about cases where defendants have no evidence that class members purchased a product and class members have no receipts or other such documentation to show they are members of the class. The Third Circuit held that a plaintiff seeking class certification “must show, by a preponderance of the evidence, that the class is ‘currently and readily ascertainable based on objective criteria.’”
In contrast, the Sixth, Seventh, and Eighth Circuits have rejected such an implied requirement, adhering instead to a more literal reading of Rule 23(b)(3) as requiring only that a class be clearly defined. With its decision in Briseno, the Ninth Circuit joins the Sixth, Seventh, and Eighth Circuits in rejecting an additional ascertainability requirement. With a 5-4 split among the circuits on the issue, the likelihood of Supreme Court consideration of the issue has risen.
In Briseno, the defendant, ConAgra, sought reversal of the district court’s certification of eleven state damages classes of consumers who purchased ConAgra’s Wesson-brand cooking oil products labeled “100% Natural” – a label the plaintiffs alleged was false or misleading because the products contain genetically modified ingredients. ConAgra invoked the Third Circuit’s Carrera decision, arguing that the district court should have required the plaintiffs to demonstrate an “administratively feasible” way to “ascertain” class membership. At oral argument, the panel’s comments suggested skepticism of ConAgra’s contention that “plaintiffs have the obligation to come forward with a plan” to ascertain which persons are in the class, forecasting the opinion that followed, which adopted the panel’s concern.
Ninth Circuit Holds There Is No “Administrative Feasibility” Requirement
In Briseno, a Ninth Circuit panel unanimously affirmed the district court’s class certification order, grounding its decision on Rule 23(b)(3)’s explicit requirements. The panel began by emphasizing that the Rule does not mention “administrative feasibility”—a “meaningful” omission—and that to include such a requirement would be effectively amending Rule 23 outside Congress’s articulated rule-making process. Thus, the Ninth Circuit “decline[d] to interpose an additional hurdle into the class certification process delineated in the enacted Rule.”
In doing so, the Ninth Circuit specifically rejected the Third Circuit’s contrary holding, noting that the Third Circuit “justifies its administrative feasibility requirement not through the text of Rule 23(b)(3), but rather as a necessary tool to ensure that the ‘class will actually function as a class.’” While acknowledging the Third Circuit’s concerns over protecting the goals and efficiencies of the Rule, the Ninth Circuit rebuffed the notion that a freestanding “administrative feasibility” inquiry was needed, stressing:
Rule 23(b)(3) already contains a specific, enumerated mechanism to achieve that goal: the manageability criterion of the superiority requirement. Rule 23(b)(3) requires that a class action be “superior to other available methods for fairly and efficiently adjudicating the controversy,” and it specifically mandates that courts consider “the likely difficulties in managing a class action.
The Ninth Circuit criticized what it considered the inappropriately narrow “administrative feasibility” inquiry, particularly because “Rule 23(b)(3) calls for a comparative assessment of the costs and benefits of class adjudication, including the availability of ‘other methods’ for resolving the controversy” whereas the “standalone administrative feasibility requirement  invite[s] courts to consider the administrative burdens of class litigation ‘in a vacuum.’” Doing so, the panel reasoned, could “often be outcome determinative” for cases where “administrative feasibility would be difficult to demonstrate,” but where there is “no realistic alternative to class treatment.” Indeed, focusing on such issues “conflicts with the well-settled presumption that courts should not refuse to certify a class merely on the basis of manageability concerns.”
The Ninth Circuit was similarly un-swayed by ConAgra’s due process arguments. As to notice for absent class members, the Court pointed out that “neither Rule 23 nor the Due Process Clause requires actual notice to each individual class member” but rather only requires the best notice practicable under the circumstances, recognizing it may be “impossible” to identify some class members. The Court also rejected putting absent class members’ “purely theoretical interest[s]” of pursuing individual actions over the interests of the greater class of consumers, noting that to do otherwise would be at “the expense of any possible recovery for all class members—in precisely those cases that depend most on the class mechanism.”
Finally, as to defendants’ due process rights, the Ninth Circuit panel found ConAgra’s concerns over fraud and whether class members really bought the product, largely unfounded. The court pointed out that ConAgra could still challenge the named class representatives, and that ConAgra had been unable to explain why the long-relied upon use of “claim administrators, various auditing processes, sampling for fraud detection, follow-up notices to explain the claims process, and other techniques tailored by the parties and the court” to validate class member claims were insufficient to safeguard its rights. Perhaps most importantly of all, the Ninth Circuit concluded by explaining that when courts can determine the price premium attributable to a defendant’s unlawful conduct and multiply that by the number units sold, it is unnecessary for due process purposes to determine the identity of absent class members, because the “aggregate amount of liability will be determinable even if the identity of all class members is not.”
With its decision in Briseno, the Ninth Circuit not only joins the Sixth, Seventh and Eighth Circuits in refusing to apply the Third Circuit’s “heightened” ascertainability requirement, it expressly rejects a standalone “administrative feasibility” requirement at class certification. As the Ninth Circuit panel explained, the class certification inquiry must not be undertaken in a vacuum; instead, courts must consider the class action mechanism as compared with other methods of resolving a dispute. This view very much appears to be correct. While the United States Supreme Court previously denied certiorari for the Seventh Circuit’s Mullins opinion, the Briseno decision furthers the divide between the circuits, making the ascertainability issue a more likely target for Supreme Court consideration.
 Briseno v. ConAgra Foods, Inc., 844 F.3d 1121 (9th Cir. 2017).
 See Brecher v. Republic of Argentina, 806 F.3d 22 (2d Cir. 2015); Karhu v. Vital Pharm., Inc., 621 F. App’x 945 (11th Cir. 2015); Byrd v. Aaron’s Inc., 784 F.3d 154 (3d Cir. 2015); EQT Production Co v. Adair, 764 F.3d 347 (4th Cir. 2014); Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013); DeBremaecker v. Short, 433 F.2d 733 (5th Cir. 1970).
 Carrera, 727 F.3d at 304.
 Id. at 306 (citation omitted).
 See 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).
 Briseno, 844 F.3d at 1133.
 Id. at 1123-24.
 Briseno, 844 F.3d at 1124. The plaintiffs had moved to certify eleven damages classes defined as: "All persons who reside in the States of California, Colorado, Florida, Illinois, Indiana, Nebraska, New York, Ohio, Oregon, South Dakota, or Texas who have purchased Wesson Oils within the applicable statute of limitations periods established by the laws of their state of residence (the “Class Period”) through the final disposition of this and any and all related actions."
 United States Courts for the Ninth Circuit, 15-55727 Robert Briseno v. ConAgra Foods, Inc. (recorded Sept. 12, 2016), http://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000010172.
 Briseno, 844 F.3d at 1125.
 Id. at 1126.
 Id. at 1127-28 (quoting Fed. R. Civ. P. 23(b)(3)(D)).
 Id. at 1128 (quoting Mullins, 795 F.3d at 663).
 Id. (citing Mullins, 795 F.3d at 663-64).
 Id. (quoting Mullins, 795 F.3d at 663 and citing In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 140 (2d Cir. 2001) (Sotomayor, J.) (holding that refusal to certify a class “on the sole ground that it would be unmanageable is disfavored and ‘should be the exception rather than the rule’”) (quotations omitted))).
 Briseno, 844 F.3d at 1128.
 Fed. R. Civ. P. 23(c)(2)(B).
 Briseno, 844 F.3d at 1129 (quoting Mullins, 795 F.3d at 665).
 Id. at 1130.
 Id. (quoting Mullins, 795 F.3d at 667).
 Id. at 1132 (“‘[T]he identity of particular class members does not implicate the defendant’s due process interest at all’ because ‘[t]he addition or subtraction of individual class members affects neither the defendant’s liability nor the total amount of damages it owes to the class.’” (quoting Mullins, 795 F.3d at 670))
 Mullins v. Direct Digital, LLC,136 S. Ct. 1161 (2016).
*Michaela Spero is an associate in Washington, DC, and Samantha Stein is an associate in San Francisco.