Federal circuit courts have long been split on whether class plaintiffs must prove the existence of an administratively feasible method of identifying absent class members as a prerequisite to class certification under Federal Rule of Civil Procedure 23. This issue can be particularly important in cases involving relatively low-dollar retail products for which sales records are unlikely to be retained on a broad scale. 

For its part, the Ninth Circuit has answered this question in the negative, holding that Rule 23 contains no ascertainability or administrative feasibility requirement. See Briseno v. ConAgra Foods, Inc., 844 F.3d 1121 (9th Cir. 2017). Nevertheless, even without such a requirement, the management challenges associated with consumer product class actions can be daunting and layered with factual complexities. For example, what if, in addition to a lack of sales records, the product labeling undergoes material changes during the class period?

On May 28, 2024, a magistrate judge in the Northern District of California rejected defense arguments opposing certification in such a scenario, although the court’s ruling appeared to hinge largely on the parties’ particular framing of the issue. In Sinatro v. Barilla, No. 22-cv-03640-DMR, the plaintiffs sued under California consumer protection laws, including the Unfair Competition Law (BPC § 17200), the False Advertising Law (BPC § 17500), and the Consumer Legal Remedies Act (Civ. Code § 1750), alleging the defendant’s pasta products were deceptively labeled. Plaintiffs contended that the language “ITALY’S #1 BRAND OF PASTA®” (the so-called “Challenged Representation”) caused reasonable consumers to believe the products were made and sourced in Italy. Plaintiffs sought certification of a class of California consumers who purchased products “containing the Challenged Representation on the Products’ front packaging.”

In its certification opposition, the defendant argued that it had removed the Challenged Representation from most of the products at issue during the class period. Thus, according to the defendant, the class was "inadequately defined and not ascertainable," warranting denial of class certification. 

The district court dispatched this argument, finding that the defendant’s cited authorities predated Briseno, which “held that there is no separate ‘administrative feasibility’ requirement for class certification.” The court also cited the class definition, which it determined was not overly broad because it included only those products bearing the Challenged Representation. In effect, the court ruled that the issue of common exposure to the allegedly deceptive advertising was addressed through the class definition. 

While this portion of the ruling may seem straightforward on its face, allowing putative class representatives to effectively defer fundamental and complex questions such as which consumers actually purchased a product bearing the challenged advertising is inefficient and arguably inconsistent with Rule 23’s objectives. Further, although Briseno reasoned that the risk of fraudulent claim submissions in class actions was nominal, reports of fraudulent claims appear to have increased since Briseno was decided. Moreover, granting class treatment to claims without meaningful proof of how purchasers of accused and non-accused products will ultimately be separated arguably constitutes a use of the class vehicle to expand substantive rights and restrict individualized defenses, in violation of the Rules Enabling Act and due process requirements. 

In any event, defendants in the Ninth Circuit would be well-advised to emphasize Rule 23’s express elements—e.g., commonality, predominance, manageability—as opposed to attempting to resurrect ascertainability or administrative feasibility arguments that may be rejected as conflicting with Briseno.