(Reuters) - Late Thursday, Conagra filed a new brief at the U.S. Supreme Court, asserting an irrefutable argument: If there was any doubt that federal appellate courts continue to struggle with the issue of class certification and identifying class members, this week resolved it. According to Conagra, rulings in the last seven days from the 2nd and 6th Circuit Courts of Appeals make it all the more obvious that the Supreme Court must tell the lower courts what to do about class action ascertainability.
Conagra has asked the Supreme Court to review a 9th Circuit decision that upheld certification of a class of Wesson Oil purchasers who claim products were falsely labeled as all-natural. The 9th Circuit rejected Conagra’s defense that the class could not be certified because purchasers could not be identified by an objective and administratively feasible process. Following the lead of the 7th Circuit – and explicitly rejecting contrary precedent from the 3rd Circuit – the 9th Circuit held in Briseno v. Conagra that sworn affidavits from plaintiffs are a perfectly fine way to ascertain class membership.
When Conagra’s Supreme Court lawyers from Jones Day first asked for the justices’ attention in April, they knew the court had rejected two previous requests for review of the ascertainability issue, including a petition in the 7th Circuit case that first created a split among the federal appellate courts. So Conagra emphasized the depth of the circuit split, arguing that three other circuits – the 2nd, 4th and 11th – are aligned with the 3rd Circuit, while the 6th, 7th and 9th stand on the other side. (The 8th Circuit’s precedent, Conagra said, is ambiguous.) Class certification in substantially identical cases, Conagra said, now turns on where the case is filed.
The plaintiffs suing Conagra, as I’ve reported, countered that the circuit split isn’t as intractable as Conagra said and may simply resolve itself in light of the Supreme Court’s 2016 decision to uphold certification of a class of meat-processing employees in Tyson v. Bouaphakeo.
That argument seemed to gain credibility last Friday, when the 2nd Circuit issued its ruling in In re Petrobras Securities. The 2nd Circuit used the Petrobras securities class action opinion as a vehicle to clarify its stance on class action ascertainability. The court said it actually agreed with the 7th and 9th Circuits that the federal class action rules do not implicitly require plaintiffs to offer a failsafe means of identifying class members in order to be certified. The 2nd Circuit explicitly disagreed with the 3rd Circuit’s heightened ascertainability standard, citing a “growing consensus” in the circuits.
The plaintiffs suing Conagra, represented at the Supreme Court by New York University professor Samuel Issacharoff, jumped on the 2nd Circuit’s Petrobras holding in a supplemental brief to the Supreme Court on Tuesday. “In light of what the 2nd Circuit terms the ‘growing consensus,’ this is precisely an area where the law should be permitted to percolate before premature, and perhaps unnecessary, intervention from the court,” the brief said. “There will be time enough for review if conflict persists -- something that appears to be an increasingly remote prospect.”
But at almost the exact same time that plaintiffs filed that supplemental Supreme Court brief, the 6th Circuit issued a decision complicating its stance on ascertainability. The 6th Circuit had been counted as an ally of the 7th and 9th Circuits' position, by virtue of a decision in which it said it saw no reason to adopt the 3rd Circuit’s heightened ascertainability test. Nevertheless, in its ruling Tuesday in Sandusky Wellness Center v. ASD Specialty Healthcare d/b/a Besse Medical, the 6th Circuit agreed that plaintiffs’ affidavits in a Telephone Consumer Protection Act class action were not an adequate means of identifying class members.
That’s a lot of ascertainability action in a week, and Conagra’s new brief attempts to synthesize it in a mere five pages of text. Part of the filing is devoted to explaining why, in Conagra’s view, the plaintiffs overstated the significance of the 2nd Circuit’s Petrobras decision. When you put aside the opinion’s talk of a growing consensus against the 3rd Circuit standard, Conagra said, the 2nd Circuit’s actual holding requires plaintiffs to provide an objective criteria for class membership. That standard, Conagra said, cannot be squared with the 9th Circuit’s decision in the Wesson Oil case.
The brief spends far less time on the 6th Circuit’s Sandusky decision, but said it’s also clearly at odds with the 7th Circuit and the 9th Circuit. Regardless of how the circuits align, Conagra said, it’s obvious that the courts “remain deeply divided” about the problem of unidentifiable class members.
Essentially, Conagra’s brief suggests the real issue isn’t whether the federal rules include an implied ascertainability requirement but the baseline question of whether courts should allow class actions on behalf of unidentified – and possibly unverifiable – class members. The Supreme Court has danced around that question but hasn’t directly answered it. Conagra is arguing that it’s now time to decide.
“Any split in the all-important area of class certification deserves this court’s attention, let alone one as deep as plaintiffs themselves recognize,” the brief said. “Whatever the circuits may say about the ascertainability label, they fundamentally disagree where it counts: whether a class may be certified without any clue as to how to efficiently identify absent class members. This court should put an end to this persistent, important dispute.”
I’ve said before that the Conagra case is an important test of the new court’s willingness to look at fundamental class action questions. This week’s developments, as Conagra wrote, highlight the very basic issue – who’s in the class? – at the heart of the ascertainability split. We’ll know next fall whether the Supreme Court is ready to answer the question.