ConAgra Brands certainly hopes so, and has just asked the Ninth Circuit Court of Appeals to stay its recent mandate in the case (ie. put the case on hold) so it can file a petition to the Supreme Court for a writ of certiorari (ie .ask it to review the case).
The case in question* consolidates lawsuits in multiple states alleging ConAgra falsely advertised Wesson-branded cooking oils as ‘100% natural’ when they were made from GM crops, and has not gone well for ConAgra, with the Ninth Circuit Court of Appeals recently agreeing with a decision by a lower court to certify the consumer class in the case.
Should plaintiffs have to demonstrate an ‘administratively feasible’ way to identify class members?
The key issue ConAgra wants the Supreme Court to address is not the merits (ie. whether the products were falsely advertised), or if it must change its labels (the district court only certified the class to recover damages, not injunctive relief), but the ‘ascertainability’ or ‘administrative feasibility’ requirement for class actions.
In other words, it wants the Court to address how to identify members of a class, and whether ninth circuit Judge Michelle T. Friedland was right to certify a class of consumers in this case.
While this might sound like a technicality, it's of critical importance to plaintiffs and defendants involved in false advertising lawsuits on foods and beverages, as strict ascertainability requirements that make it harder to certify a class could potentially doom cases involving low value items such as food.
Is it realistic to expect consumers to keep receipts for low-value food items?
In her published opinion issued on January 3, Friedland said requiring plaintiffs to demonstrate an ‘administratively feasible’ way to identify class members (for example via receipts) should not be a prerequisite to class certification.
In other words, she said, it’s unrealistic to expect consumers to keep receipts for low-value food items just in case they need them years later to qualify as a member of a class action lawsuit, and are required to demonstrate proof of purchase.
Meanwhile, the likelihood of fraud in the absence of receipts for such low-ticket items is pretty slim given how low the stakes are (it’s not worth committing perjury over a bottle of cooking oil) and how few people typically even bother to file claims in cases when a settlement is reached, she added.
However, she acknowledged that other appeals courts held a different view, something seized upon in ConAgra’s February 21 filing: “The certiorari petition will address, inter alia, whether ascertainability is a prerequisite to class certification, a question that has deeply divided the courts of appeals.”
"There is a circuit split, which the Supreme Court is supposed to resolve… So yes I think there is a good chance that the Supreme Court will take this up.”
David Biderman, partner, Perkins Coie
Attorney: ‘I think there is a good chance that the Supreme Court will take this up’
So will the Supreme Court take this one on?
There’s a good chance it might, according to Perkins Coie partner David Biderman, given that there is a split between the different appeals courts on this issue.
He told FoodNavigator-USA: “The third circuit in Carrera v. Bayer stated that in consumer class actions there needed to be an administratively feasible way to ascertain the class of purchasers, and also determined that without receipts, affidavits of class members would not be reliable. Many said this would effectively doom consumer class actions, because who saves receipts?
“Other circuits [such as the Ninth] have rejected this approach so there is a circuit split, which the Supreme Court is supposed to resolve… So yes I think there is a good chance that the Supreme Court will take this up.”
"It's unusual for the Supreme Court to grant a writ of certiorari, but this is one case where it very well might, as there is a split within the circuit on the issue of whether there is an ascertainability requirement as part of rule 23, so this is potentially a very big deal for the food industry."
Angel Garganta, partner, Venable LLP
How might the Supreme Court vote?
As for how the Supreme Court might view this issue, it's probably fair to predict that conservative judges would favor ConAgra’s view (ie. that there should be an ascertainability requirement, which makes it harder to certify a class), while liberal judges might agree with the ninth circuit, said attorneys.
However, it’s not necessarily that clear cut, said Biderman, who noted that while Supreme Court nominee Neil Gorsuch will take a ‘conservative’ approach (assuming his nomination goes through), he does not appear to be as “hostile” to class actions as former Supreme Court Judge Antonin Scalia (whose seat is now vacant).
He added: “The one interesting issue is that administrative feasibility or ascertainability are not requirements set forth in federal rule 23, which sets forth the requirements for class action. So Gorsuch, who would typically want to defer to the language of the statute, may be less inclined than Scalia [would have been] to set up a high ascertainability bar.”
The case is Robert Briseno et al v ConAgra Foods Inc Case: 15-55727 (2:11-cv-05379)