"Administrative Feasibility" Rejected In The Ninth Circuit

On Jan. 3, in Briseno v. Conagra Foods, Inc., Case No. 15-55727, the Ninth Circuit Court of Appeals held that Fed. R. Civ. P. 23 does not require class representatives to demonstrate that there is an "administratively feasible" means of identifying absent class members in order to certify a class. In rejecting the "administrative feasibility" requirement, the Ninth Circuit joins the Sixth, Seventh and Eighth Circuits, which have come to the same conclusion. (See some of our recent coverage on this issue here, here and here).

The "administrative feasibility" test, also referred to as part of "ascertainability," asks whether there is an administratively feasible way to identify class members or if costly individualized fact-finding or mini-trials will be required to prove class membership. If too much individual fact-finding is needed, then there is not an administratively feasible way to ascertain class members. Circuit courts, such as the Third and Eleventh,