In Briseno v. ConAgra Foods, Inc., ___ F.3d ___ (9th Cir. Jan. 3, 2017), the Ninth Circuit held that Rule 23 does not require plaintiffs to establish an “administratively feasible” means of identifying putative class members, expressly rejecting decisions like Carrera v. Bayer Corp., 727 F.3d 300, 306-08 (3d Cir. 2013). But the decision goes well beyond administrative feasibility. Plaintiffs counsel will argue that the decision also endorses aggregate liability and damages determinations in consumer fraud cases to be followed by a “claims process” overseen by claims administrators. The impact of the decision remains to be seen, but Briseno is bad news for class action defendants, as it likely will make class certification easier in the Ninth Circuit. This article discusses the Briseno decision and offers key takeaways for future cases.

The Ninth Circuit’s Briseno Decision

The Briseno case is one of many class actions challenging food labels. These cases have become substantially more popular in the plaintiffs’ bar, because they do not usually present any opportunity for defendants to move them into arbitration based on class action waivers in arbitration agreements. Customers who buy off the shelf do not agree to arbitrate their claims.

The Briseno plaintiffs claim that a “100% Natural” label is false or misleading because Wesson oils are made from bioengineered ingredients, which the plaintiffs argue are not “natural.”

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Photo of Rob Herrington Rob Herrington

Robert J. Herrington, Co-Chair of the firm’s Class Action Litigation Group, focuses his practice on defending consumer products companies in complex, multi-party litigation, including class actions, government enforcement litigation, product defect litigation and mass torts. Rob represents companies in a variety of industries…

Robert J. Herrington, Co-Chair of the firm’s Class Action Litigation Group, focuses his practice on defending consumer products companies in complex, multi-party litigation, including class actions, government enforcement litigation, product defect litigation and mass torts. Rob represents companies in a variety of industries, including apparel and footwear, retail, emerging technologies, consumer electronics, video game, telecommunications, advertising and publicity, online retailing, food and beverage, nutritional supplements, personal care products, sports and fitness, outdoor equipment, home appliances, automotive, and insurance.

Rob is the author of the best-selling book, Verdict for the Defense (Sutton Hart Press 2011), and a co-author of the first and second editions of The Class Action Fairness Act: Law and Strategy (ABA Publishing 2013 and 2022) as well as Class Action Strategy and Practice Guide (ABA Publishing 2018). Rob was recognized as the “Class Action Litigation Lawyer of the Year” (2017) by the Century City Bar Association. In 2013, 2014 and 2015, Rob was named in Law360‘s list of “Top Attorneys Under 40” for Class Actions.

Photo of Rick L. Shackelford Rick L. Shackelford

Rick L. Shackelford is Co-Chair of the firm’s Food, Beverage & Agribusiness Practice. Rick’s practice focuses on complex litigation in numerous fields, including consumer class actions, product liability, false advertising, bankruptcy, securities, insurance, real estate and commercial law. He has considerable experience in…

Rick L. Shackelford is Co-Chair of the firm’s Food, Beverage & Agribusiness Practice. Rick’s practice focuses on complex litigation in numerous fields, including consumer class actions, product liability, false advertising, bankruptcy, securities, insurance, real estate and commercial law. He has considerable experience in consumer class action litigation, having been involved in class actions in federal courts in several states. In addition, his practice includes trials and appeals, in many instances involving cases he has handled from their initial pleading stages. He has defended clients in consumer product liability cases, including Proposition 65 claims. He has also represented debtors and creditors in bankruptcy actions throughout California, as well as in Ohio, Texas and Nevada, and has defended and prosecuted avoidance actions.

Rick represents food and beverage companies in consumer class and individual actions alleging deceptive trade practices and false advertising, including challenges to nutrition, ingredient and health claims made in a variety of media. His experience includes defending three clients in federal jury trials for alleged false advertising in violation of the Lanham Act and applying the “safe harbor” laws in two different district courts to bar consumer deception claims leveled against alcoholic beverage labels – the first such rulings ever applied to distilled spirits. Rick also handles claims for makers of dietary supplements, weight loss products, cosmetics and skin care products in California based upon claims that the products are ineffective or unlawfully marketed as unapproved drugs.

Photo of Jeff E. Scott Jeff E. Scott

Jeff E. Scott is Co-Chair of the firm’s Global Litigation Practice. Jeff is a nationally recognized trial lawyer with substantial experience acting as lead trial counsel for many cases before judges, jurors and arbitrators. He represents clients in major litigation in a wide

Jeff E. Scott is Co-Chair of the firm’s Global Litigation Practice. Jeff is a nationally recognized trial lawyer with substantial experience acting as lead trial counsel for many cases before judges, jurors and arbitrators. He represents clients in major litigation in a wide variety of areas, including media and entertainment, intellectual property, class action, unfair competition, commercial contract disputes, and business torts. His clients include some of the nation’s largest companies.

Jeff was recently recognized as “Litigation Attorney of the Year,” by the Los Angeles Business Journal, and was lauded as a “go-to” litigator for major motion pictures studios and gaming companies. He has also been recognized by Legal 500 as a top commercial and international litigation attorney, The Hollywood Reporter as a winner of its “Top 100 Power Lawyers Award” and listed on Variety Magazine’s “Legal Impact Report,” and Acritas‘s “Star Lawyers,” list.

In addition to leading the firm’s preeminent Litigation practice of more than 600 attorneys worldwide, Jeff is actively involved in LA’s nonprofit community and sits on the board of the Constitutional Rights Foundation (CRF). Jeff is also a member of the American Bar Association, the Association of Business and Trial Lawyers, the Century City Bar Association and the Los Angeles County Bar Association.