FRIEDLAND, Circuit Judge:
This appeal requires us to decide whether, to obtain class certification under Federal Rule of Civil Procedure 23, class representatives must demonstrate that there is an "administratively feasible" means of identifying absent class members. Defendant-Appellant ConAgra Foods, Inc. ("ConAgra") urges us to reverse class certification because the district court did not require Plaintiff-Appellee Robert Briseno and the other named class representatives (collectively, "Plaintiffs") to proffer a reliable way to identify members of the certified classes here — consumers in eleven states who purchased Wesson-brand cooking oils labeled "100% Natural" during the relevant period.
We have never interpreted Rule 23 to require such a showing, and, like the Sixth, Seventh, and Eighth Circuits, we decline to do so now. See Sandusky Wellness Ctr., LLC, v. Medtox Sci., Inc., 821 F.3d 992, 995-96 (8th Cir. 2016); Rikos v. Procter & Gamble Co., 799 F.3d 497, 525 (6th Cir. 2015); Mullins v. Direct Digital, LLC, 795 F.3d 654, 658 (7th Cir. 2015), cert. denied, ___ U.S. ___, 136 S.Ct. 1161, 194 L.Ed.2d 175 (2016). A separate administrative feasibility prerequisite to class certification is not compatible with the language of Rule 23. Further, Rule 23's enumerated criteria already address the policy concerns that have motivated some courts to adopt a separate administrative feasibility requirement, and do so without undermining the balance of interests struck by the Supreme Court, Congress, and the other contributors to the Rule. We therefore affirm.
Plaintiffs are consumers who purchased Wesson-brand cooking oil products labeled "100% Natural." The "100% Natural" label appeared on every bottle of Wesson-brand oil throughout the putative class periods (and continues to appear on those products). Plaintiffs argue that the "100% Natural" label is false or misleading because Wesson oils are made from bioengineered ingredients (genetically modified organisms, or GMOs) that Plaintiffs contend are "not natural." ConAgra manufactures, markets, distributes, and sells Wesson products.
Plaintiffs filed putative class actions asserting state-law claims against ConAgra
As relevant here, ConAgra opposed class certification on the ground that there would be no administratively feasible way to identify members of the proposed classes because consumers would not be able to reliably identify themselves as class members. As a result, ConAgra argued that the class was not eligible for certification.
The district court acknowledged that the Third Circuit and some district courts have refused certification in similar circumstances, but it declined to join in their reasoning. Instead, the district court held that, at the certification stage, it was sufficient that the class was defined by an objective criterion: whether class members purchased Wesson oil during the class period.
The district court ultimately granted Plaintiffs' motion in part and certified eleven statewide classes to pursue certain claims for damages under Federal Rule of Civil Procedure 23(b)(3). ConAgra timely sought and obtained permission to appeal pursuant to Rule 23(f).
Federal Rule of Civil Procedure 23 governs the maintenance of class actions in federal court. Parties seeking class certification must satisfy each of the four requirements of Rule 23(a) — numerosity, commonality, typicality, and adequacy — and at least one of the requirements of Rule 23(b). Ellis v. Costco Wholesale Corp., 657 F.3d 970, 979-80 (9th Cir. 2011).
ConAgra argues that, in addition to satisfying these enumerated criteria, class proponents must also demonstrate that there is an administratively feasible way to determine who is in the class.
We employ the "traditional tools of statutory construction" to interpret the Federal Rules of Civil Procedure. Republic of Ecuador v. Mackay, 742 F.3d 860, 864 (9th Cir. 2014) (quoting United States v. Petri, 731 F.3d 833, 839 (9th Cir. 2013)). In construing what Rule 23 requires, our "`first step'" is thus "`determin[ing] whether the language at issue has a plain meaning.'" Id. (quoting McDonald v. Sun Oil Co., 548 F.3d 774, 780 (9th Cir. 2008)); see also Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 163, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988) (noting that interpretation of the federal rules "begin[s] with the language of the Rule itself"). "When interpreting [the Rule], words and phrases must not be read in isolation, but with an eye toward the `purpose and context of the statute.'" Petri, 731 F.3d at 839 (quoting Dolan v. U.S. Postal Serv., 546 U.S. 481, 486, 126 S.Ct. 1252, 163 L.Ed.2d 1079 (2006)). "An interpretation that gives effect to every clause is generally preferable to one that does not." Mackay, 742 F.3d at 864.
Beginning then with the plain language, Rule 23(a) is titled "Prerequisites" and provides:
FED. R. CIV. P. 23(a). This provision identifies the prerequisites to maintaining a class action in federal court. It does not mention "administrative feasibility."
Traditional canons of statutory construction suggest that this omission was meaningful. Because the drafters specifically enumerated "[p]rerequisites," we may conclude that Rule 23(a) constitutes an exhaustive list. See Silvers v. Sony Pictures Entm't, Inc., 402 F.3d 881, 885 (9th Cir. 2005) (explaining that, under the doctrine of expressio unius est exclusio alterius, the enumeration of certain criteria to the exclusion of others should be interpreted as an intentional omission). We also take guidance from language used in other provisions of the Rule. In contrast to Rule 23(a), Rule 23(b)(3) provides, "The matters
Supreme Court precedent also counsels in favor of hewing closely to the text of Rule 23. In Amchem Products, Inc. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997), the Court considered whether a settlement-only class could be certified without satisfying the requirements of Rule 23. In holding that it could not,
In sum, the language of Rule 23 does not impose a freestanding administrative feasibility prerequisite to class certification. Mindful of the Supreme Court's guidance, we decline to interpose an additional hurdle into the class certification process delineated in the enacted Rule. See Sandusky Wellness Ctr., LLC, v. Medtox Sci., Inc., 821 F.3d 992, 996 (8th Cir. 2016) (declining to recognize a "separate, preliminary" requirement and, instead, "adher[ing] to a rigorous analysis of the Rule 23 requirements").
We recognize that the Third Circuit does require putative class representatives to demonstrate "administrative feasibility" as a prerequisite to class certification.
One rationale the Third Circuit has given for imposing an administrative feasibility requirement is the need to mitigate the administrative burdens of trying a Rule 23(b)(3) class action. Courts adjudicating such actions must provide notice that a class has been certified and an opportunity for absent class members to withdraw from the class. See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 362, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011); accord FED. R. CIV. P. 23(c)(2)(B). The Third Circuit largely justifies its administrative feasibility prerequisite as necessary to ensure that compliance with this procedural requirement does not compromise the efficiencies Rule 23(b)(3) was designed to achieve.
But Rule 23(b)(3) already contains a specific, enumerated mechanism to achieve that goal: the manageability criterion of the superiority requirement. Rule 23(b)(3) requires that a class action be "superior to other available methods for fairly and efficiently adjudicating the controversy," and
Moreover, as the Seventh Circuit has observed, requiring class proponents to satisfy an administrative feasibility prerequisite "conflicts with the well-settled presumption that courts should not refuse to certify a class merely on the basis of manageability concerns." Mullins, 795 F.3d at 663; see also In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 140 (2d Cir. 2001) (Sotomayor, J.) (holding that refusal to certify a class "on the sole ground that it would be unmanageable is disfavored and `should be the exception rather than the rule'" (quoting In re S. Cent. States Bakery Prods. Antitrust Litig., 86 F.R.D. 407, 423 (M.D. La. 1980))), overruled on other grounds by In re IPO Sec. Litig., 471 F.3d 24 (2d Cir. 2006), and superseded by statute on other grounds as stated in Attenborough v. Constr. & Gen. Bldg. Laborers' Local 79, 238 F.R.D. 82, 100 (S.D.N.Y. 2006). This presumption makes ample sense given the variety of procedural tools courts can use to manage the administrative burdens of class litigation. For example, Rule 23(c) enables district courts to divide classes into subclasses or certify a class as to only particular issues. FED. R. CIV. P. 23(c)(4), (5); see also In re Visa Check/MasterMoney, 280 F.3d at 141 (listing "management tools available to" district courts).
Adopting a freestanding administrative feasibility requirement instead of assessing manageability as one component of the superiority inquiry would also have practical consequences inconsistent with the policies embodied in Rule 23. Rule 23(b)(3) calls for a comparative assessment of the costs and benefits of class adjudication, including the availability of "other methods" for resolving the controversy. By contrast, as the Seventh Circuit has emphasized, a standalone administrative feasibility requirement would invite courts to consider the administrative burdens of class litigation "in a vacuum." See Mullins, 795 F.3d at 663. That difference in approach would often be outcome determinative for cases like this one, in which administrative feasibility would be difficult to demonstrate but in which there may be no realistic alternative to class treatment. See id. at 663-64. Class actions involving inexpensive consumer goods in particular would likely fail at the outset if administrative feasibility were a freestanding prerequisite to certification.
The authors of Rule 23 opted not to make the potential administrative burdens of a class action dispositive and instead directed courts to balance the benefits of class adjudication against its costs. We lack authority to substitute our judgment for theirs. See Amchem Prods., 521 U.S. at 620, 117 S.Ct. 2231 ("[T]he Rule as now composed sets the requirements [courts] are bound to enforce.").
The Third Circuit has also justified its administrative feasibility requirement as necessary to protect absent class members and to shield bona fide claimants from fraudulent claims.
With respect to absent class members, the Third Circuit has expressed concern about whether courts would be able to ensure individual notice without a method for reliably identifying class members. See Byrd, 784 F.3d at 165; Carrera, 727 F.3d at 307. We believe that concern is unfounded, because neither Rule 23 nor the Due Process Clause requires actual notice to each individual class member.
Rule 23 requires only the "best notice that is practicable under the circumstances,
Likewise, the Due Process Clause does not require actual, individual notice in all cases. See Silber v. Mabon, 18 F.3d 1449, 1453-54 (9th Cir. 1994); see also Mullins, 795 F.3d at 665 (explaining that when individual notice by mail is "not possible, courts may use alternative means such as notice through third parties, paid advertising, and/or posting in places frequented by class members, all without offending due process"). Courts have routinely held that notice by publication in a periodical, on a website, or even at an appropriate physical location is sufficient to satisfy due process. See, e.g., Hughes v. Kore of Ind. Enter., Inc., 731 F.3d 672, 676-77 (7th Cir. 2013) (holding that sticker notices on two allegedly offending ATMs, as well as publication in the state's principal newspaper and on a website, provided adequate notice to class members in an action challenging ATM fees); Juris v. Inamed Corp., 685 F.3d 1294, 1319 (11th Cir. 2012) (holding that notice to unidentified class members by periodical and website satisfied due process).
Moreover, the lack-of-notice concern presumes that some harm will inure to absent class members who do not receive actual notice. In theory, inadequate notice might deny an absent class member the opportunity to opt out and pursue individual litigation. But in reality that risk is virtually nonexistent in the very cases in which satisfying an administrative feasibility requirement would prove most difficult — low-value consumer class actions. Such cases typically involve low-cost products and, as a result, recoveries too small to incentivize individual litigation. At the same time, an administrative feasibility requirement like that imposed by the Third Circuit would likely bar such actions because consumers generally do not keep receipts or other records of low-cost purchases. Practically speaking, a separate administrative feasibility requirement would protect a purely theoretical interest of absent class members at the expense of any possible recovery for all class members — in precisely those cases that depend most on the class mechanism. Justifying an administrative feasibility requirement as a means of ensuring perfect recovery at the expense of any recovery would undermine the very purpose of Rule 23(b)(3) — "vindication of `the rights of groups of people who individually would be without effective strength to bring their opponents into court at all.'" Amchem Prods., 521 U.S. at 617, 117 S.Ct. 2231 (quoting Benjamin Kaplan, A Prefatory Note, 10 B.C. INDUS. & COM. L. REV. 497, 497 (1969)).
The Third Circuit has also expressed concern that without an administrative feasibility requirement, individuals will submit illegitimate claims and thereby dilute the recovery of legitimate claimants. See Carrera, 727 F.3d at 310.
As to the dilution concern specifically, consistently low participation rates in consumer class actions make it very unlikely that non-deserving claimants would diminish the recovery of participating, bona fide class members.
Finally, the Third Circuit has characterized its administrative feasibility requirement as necessary to protect the due process rights of defendants "to raise individual challenges and defenses to claims." Carrera, 727 F.3d at 307. The gravamen of this due process concern seems to be that defendants must have an opportunity to dispute whether class members really bought the product or used the service at issue.
As an initial matter, defendants plainly can mount such challenges as to the named class representatives. Class representatives must establish standing by, for example, showing that they bought the product or used the service at issue. See Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 581, 595 (9th Cir. 2012) (holding that class representatives who allegedly paid more for or purchased a product due to a defendant's deceptive conduct have suffered an "injury in fact" that establishes Article III standing); Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007) (stating that "[t]he plaintiff class bears the burden of showing" that "at least one named plaintiff" meets the Article III standing requirements). At the class certification stage, the class representatives bear the burden of demonstrating compliance with Rule 23. See Wal-Mart Stores, 564 U.S. at 350, 131 S.Ct. 2541 ("A party seeking class certification must affirmatively demonstrate his compliance with the Rule."). And if the case proceeds past the certification stage, the plaintiff class must carry the burden of proving every element of its claims to prevail on the merits. See id. at 351 n.6, 131 S.Ct. 2541 (observing that, in a securities fraud class action, "plaintiffs seeking 23(b)(3) certification must prove that their shares were traded on an efficient market, an issue that they will surely have to prove again at trial in order to make out their case on the merits" (citation omitted)); id. at 367, 131 S.Ct. 2541 ("[T]he Rules Enabling Act forbids interpreting Rule 23 to `abridge, enlarge or modify any substantive right.'" (quoting 28 U.S.C. § 2072(b))); Shady Grove Orthopedic Assocs., P.A., v. Allstate Ins. Co., 559 U.S. 393, 408, 130 S.Ct. 1431, 176 L.Ed.2d 311 (2010) ("A class action. ... leaves the parties' legal rights and duties intact and the rules of decision unchanged."). Defendants can oppose the class representatives' showings at every stage. Indeed, in litigating class certification, ConAgra took discovery of the class representatives, challenged whether they bought Wesson oil products, attacked their credibility, and disputed whether they relied on the label at issue. As the case proceeds, ConAgra will have further opportunities to contest every aspect of Plaintiffs' case.
Defendants will have similar opportunities to individually challenge the claims of absent class members if and when they file claims for damages. At the claims administration stage, parties have long relied on "claim administrators, various auditing processes, sampling for fraud detection, follow-up notices to explain the claims process, and other techniques tailored by the parties and the court" to validate claims. Mullins, 795 F.3d at 667. Rule 23 specifically contemplates the need for such individualized claim determinations after a finding of liability. See FED. R. CIV. P. 23 advisory committee's note to 1966 amendment (explaining that certification may be proper "despite the need, if liability is found, for separate determinations of the damages suffered by individuals within the class"); see also Levya v. Medline Indus. Inc., 716 F.3d 510, 513-14 (9th Cir. 2013) (reaffirming, after Comcast Corp. v. Behrend, ___ U.S. ___, 133 S.Ct. 1426, 185 L.Ed.2d 515 (2013), that the need for individualized damages determinations after liability has been adjudicated does not preclude class certification). ConAgra does not explain why such procedures are insufficient to safeguard its due process rights.
If the concern is that claimants in cases like this will eventually offer only a "self-serving affidavit" as proof of class membership, it is again unclear why that issue must be resolved at the class certification stage to protect a defendant's due process rights. If a Wesson oil consumer were to pursue an individual lawsuit instead of a class action, an affidavit describing her purchases would create a genuine issue if ConAgra disputed the affidavit, and would prevent summary judgment against the consumer. See Mullins, 795 F.3d at 669; accord FED. R. CIV. P. 56(c)(1)(A). Given that a consumer's affidavit could force a liability determination at trial without offending the Due Process Clause, we see no reason to refuse class certification simply because that same consumer will present her affidavit in a claims administration process after a liability determination has already been made.
Moreover, identification of class members will not affect a defendant's liability in every case. For example, in this case, Plaintiffs propose to determine ConAgra's aggregate liability by (1) calculating the price premium attributable to the allegedly false statement that appeared on every unit sold during the class period, and (2) multiplying that premium by the total number of units sold during the class period. We agree with the Seventh Circuit that, in cases in which aggregate liability can be calculated in such a manner, "the identity of particular class members does not implicate the defendant's due process interest at all" because "[t]he addition or subtraction of individual class members affects neither the defendant's liability nor the total amount of damages it owes to the class." Mullins, 795 F.3d at 670; see also Six (6) Mexican Workers, 904 F.2d at 1307 ("Where the only question is how to distribute damages, the interests affected are not the defendant's but rather those of the silent class members."). The defendant will generally know how many units of a product it sold in the geographic area in question, and if the defendant is ultimately found to have charged, for example, 10 cents more per unit than it could have without the challenged sales practice, the aggregate amount of liability will be determinable even if the identity of all class members is not. The Third Circuit recognized as much in Carrera. See Carrera, 727 F.3d at 310 (acknowledging but not addressing the argument that "[the defendant's] total liability" would not be "affected by unreliable affidavits").
For these reasons, protecting a defendant's due process rights does not necessitate an independent administrative feasibility requirement.
In summary, the language of Rule 23 neither provides nor implies that demonstrating an administratively feasible way to identify class members is a prerequisite to class certification, and the policy concerns that have motivated the Third Circuit to adopt a separately articulated requirement are already addressed by the Rule. We therefore join the Sixth, Seventh, and Eighth Circuits in declining to adopt an administrative feasibility requirement. See Sandusky Wellness Ctr., LLC, v. Medtox Sci., Inc., 821 F.3d 992, 995-96 (8th Cir. 2016) (recognizing that some courts have imposed an administrative feasibility requirement, but declining to do so); Rikos v. Procter & Gamble Co., 799 F.3d 497, 525 (6th Cir. 2015) ("We see no reason to follow Carrera."); Mullins v. Direct Digital, LLC, 795 F.3d 654, 658 (7th Cir. 2015) (rejecting the administrative feasibility requirement as incompatible with Rule 23 and "the balance of interests that Rule 23 is designed to protect").
For the forgoing reasons, the district court did not err in declining to condition class certification on Plaintiffs' proffer of an administratively feasible way to identify putative class members.