(Reuters) - I’ve been touting Conagra Brands’ petition asking the U.S. Supreme Court to take up the red-hot issue of class action ascertainability as an early test of the class action appetite of the newly constituted court. But in an opposition brief filed Friday, members of the class suing Conagra over its “all-natural” labels contend the Supreme Court has already addressed the only real issue Conagra’s petition raises, in 2016’s Tyson Foods v. Bouaphakeo.
On the claims actually certified for classwide trial, this case is indistinguishable from Tyson,” wrote counsel of record Samuel Issacharoff of New York University. “How a claims process will function, and the level of proof required from claimants, are simply not relevant to establishing the scope of the defendant’s alleged wrongdoing.”
Conagra argued in its petition for certiorari that the federal circuits are intractably split on whether, in order to be certified to litigate as a class, lead plaintiffs must offer an administratively feasible plan to figure out who will ultimately be allowed to make claims. As you know, there’s no so-called ascertainability requirement in the Federal Rules of Civil Procedure for class actions, but the 3rd U.S. Circuit Court of Appeals imposed one in 2012’s Marcus v. BMW of North America and subsequently reiterated the ascertainability rule in 2013’s Carrera v. Bayer.
In 2015, the 7th Circuit explicitly rejected ascertainability as a precondition for class certification. As of the date of Conagra’s petition, the 2nd, 4th and 11th Circuits were using ascertainability tests in line with the 3rd Circuit's. The 6th Circuit – and the 9th Circuit in the Conagra case – are in line with the 7th Circuit.
But according to the new brief in opposition from plaintiffs in the Conagra case, the circuit split is greatly exaggerated. The 3rd Circuit has backtracked on its own ascertainability rule and may undo it altogether in two upcoming cases, the brief said. Moreover, the other appellate courts that have sided with the 3rd Circuit did so before the Supreme Court’s Tyson ruling.
In the Tyson case, you’ll recall, the Supreme Court upheld a wage-and-hour jury verdict against Tyson on behalf of a class of employees at an Iowa meat-packing plant. Tyson argued, among other things, that the class should not have been certified because it contained workers who were not actually entitled to overtime wages and were thus not injured by the plant’s overtime rules. Tyson contended that plaintiffs should have been required to provide a reasonable mechanism for culling uninjured class members – which, as I wrote at the time, sounds an awful lot like ascertainability.
Though the Tyson majority opinion did not specifically address the ascertainability issue, class members in the Conagra case argue the decision holds that classwide liability is distinct from aggregated individual damages. Under that interpretation of Tyson, class actions like the consumer case against Conagra can determine the classwide scope of a defendant’s wrongdoing as a first step, then figure out who’s in the class later on.
The Conagra plaintiffs contend the 9th Circuit’s opinions in their case affirm their methodology for setting classwide damages on behalf of Wesson Oil purchasers in 11 states that allow aggregate consumer claims – exactly, they say, the approach the Supreme Court blessed in Tyson.
“How does (Conagra) distinguish Tyson? Simply by ignoring it,” the brief said. “Because Tyson controls here, and because the factual record supports the approaches below, the heightened ascertainability issue that (Conagra) seeks to raise is not properly presented. The acontextual question presented would not be reached under the facts of record.”
No one is better at fending off class action defendants at the Supreme Court than Issacharoff, who has already persuaded the justices to reject two previous calls for review of the ascertainability circuit split. On the other hand, Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito signaled this week in Microsoft v. Baker that they’re concerned about uninjured class members, albeit in the context of constitutional standing, not damages. It’s going to be interesting to see if Conagra’s counsel from Jones Day and McGuireWoods can capitalize on that interest.
One fun piece of inside baseball: in addition to Issacharoff, Milberg and DiCello Levitt & Casey, the Conagra plaintiffs are represented by law professor Robert Klonoff of Lewis & Clark, who just helped revise the federal rules on class actions. Before Klonoff entered academia, he worked at Jones Day, which, as I mentioned, is representing Conagra.