FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT BRISENO, individually and 

on behalf of all others similarly 

situated,

Plaintiff-Appellee,

v.

CONAGRA FOODS, INC.,

Defendant-Appellant.

No. 15-55727

D.C. No.

2:11-cv-05379-

MMM-AGR

OPINION

Appeal from the United States District Court

for the Central District of California

Margaret M. Morrow, District Judge, Presiding

Argued and Submitted September 12, 2016

San Francisco, California

Filed January 3, 2017

Before: William A. Fletcher, Morgan B. Christen,

and Michelle T. Friedland, Circuit Judges.

Opinion by Judge Friedland
2 BRISENO V. CONAGRA FOODS

SUMMARY*

Class Certification

The panel affirmed the district court’s class certification 

in putative class actions brought against ConAgra Foods in 

eleven states by consumers who purchased Wesson-brand 

cooking oil products labeled “100% Natural” during the 

relevant period.

Plaintiffs argued that the “100% Natural” label was false 

or misleading because Wesson oils are made from 

bioengineered ingredients that plaintiffs contend are “not 

natural.” ConAgra manufactures, markets, distributes, and 

sells Wesson products. Defendant urged reversal of the 

district court’s class certification because the district court 

did not require Plaintiff-Appellee Robert Briseno and the 

other named class representatives to proffer an 

administratively feasible way to identify members of the 

certified classes.

The panel held that the language of Federal Rule of Civil 

Procedure 23 neither provides nor implies that 

demonstrating an administratively feasible way to identify 

class members is a prerequisite to class certification. The 

panel therefore joined the Sixth, Seventh, and Eighth 

Circuits in declining to adopt an administrative feasibility 

requirement.

 * This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
BRISENO V. CONAGRA FOODS 3

COUNSEL

Angela Spivey (argued), McGuireWoods LLP, Atlanta, 

Georgia; R. Trent Taylor, McGuireWoods LLP, Richmond, 

Virginia; E. Rebecca Gantt, McGuireWoods LLP, Norfolk, 

Virginia; A. Brooks Gresham and Laura E. Coombe, 

McGuireWoods LLP, Los Angeles, California; for 

Defendant-Appellant.

Adam Levitt (argued) and Edmund S. Aronowitz, Grant & 

Eisenhofer P.A., Chicago, Illinois; Mary S. Thomas, Grant 

& Eisenhofer P.A., Wilmington, Delaware; Ariana J. Tadler, 

Henry J. Kelston, Meagan Keenan, and Carey Alexander, 

Milberg LLP, New York, New York; David E. Azar, 

Milberg LLP, Los Angeles, California; for PlaintiffAppellee.

OPINION

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 
4 BRISENO V. CONAGRA FOODS

in eleven states who purchased Wesson-brand cooking oils 

labeled “100% Natural” during the relevant period.1

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, 136 S. Ct. 1161 (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.

I

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 

 1 We address ConAgra’s other challenges to the district court’s class 

certification order in a concurrently filed memorandum disposition.
BRISENO V. CONAGRA FOODS 5

natural.” ConAgra manufactures, markets, distributes, and 

sells Wesson products.

Plaintiffs filed putative class actions asserting state-law 

claims against ConAgra in eleven states, and those cases 

were consolidated in this action. Plaintiffs moved to certify 

eleven classes defined as follows:2

All persons who reside in the States of 

California, Colorado, Florida, Illinois, 

Indiana, Nebraska, New York, Ohio, Oregon, 

South Dakota, or Texas who have purchased 

Wesson Oils within the applicable statute of 

limitations periods established by the laws of 

their state of residence (the “Class Period”) 

through the final disposition of this and any 

and all related actions.

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.3

 2 We refer to Plaintiffs’ amended motion for class certification, 

which is the subject of this appeal.

3 ConAgra called this a failure of “ascertainability.” We refrain 

from referring to “ascertainability” in this opinion because courts ascribe 

widely varied meanings to that term. For example, some courts use the 

word “ascertainability” to deny certification of classes that are not 

clearly or objectively defined. See, e.g., Brecher v. Republic of 

Argentina, 806 F.3d 22, 24–26 (2d Cir. 2015) (holding that a class 
6 BRISENO V. CONAGRA FOODS

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).

II

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).

 

defined as all owners of beneficial interests in a particular bond series, 

without reference to the time owned, was too indefinite); DeBremaecker 

v. Short, 433 F.2d 733, 734 (5th Cir. 1970) (affirming denial of class 

certification because a class composed of state residents “active in the 

‘peace movement’” was uncertain and overbroad). Others have used the 

term in referring to classes defined in terms of success on the merits. 

See, e.g., EQT Prod. Co. v. Adair, 764 F.3d 347, 360 n.9 (4th Cir. 2014) 

(remanding and instructing the district court to consider, “as part of its 

class-definition analysis,” inter alia, whether the proposed classes could 

be defined without creating a fail-safe class). Our court does not have 

its own definition. See infra note 4.
BRISENO V. CONAGRA FOODS 7

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.4 ConAgra claims that Plaintiffs did not 

propose any way to identify class members and cannot prove 

that an administratively feasible method exists because 

consumers do not generally save grocery receipts and are 

unlikely to remember details about individual purchases of a 

low-cost product like cooking oil. We have not previously 

interpreted Rule 23 to require such a demonstration, and, for 

the reasons that follow, we do not do so now.

A

We employ the “traditional tools of statutory 

construction” to interpret the Federal Rules of Civil 

 4 On appeal, ConAgra continues to present administrative feasibility 

as part of a threshold “ascertainability” prerequisite to certification. 

ConAgra relies on a footnote in Berger v. Home Depot USA, Inc., 

741 F.3d 1061 (9th Cir. 2014), to argue that our court has recognized 

such a requirement. But in that footnote we explicitly declined to decide 

whether the district court abused its discretion by denying certification 

based on a “threshold ascertainability test.” Id. at 1071 n.3. ConAgra 

cites no other precedent to support the notion that our court has adopted 

an “ascertainability” requirement. This is not surprising because we 

have not. Instead, we have addressed the types of alleged definitional 

deficiencies other courts have referred to as “ascertainability” issues, see 

supra note 3, through analysis of Rule 23’s enumerated requirements. 

See, e.g., Torres v. Mercer Canyons Inc., 835 F.3d 1125, 1136–39 (9th 

Cir. 2016) (addressing claim that class definition was overbroad—and 

thus arguably contained some members who were not injured—as a Rule 

23(b)(3) predominance issue); Probe v. State Teachers’ Ret. Sys., 

780 F.2d 776, 780 (9th Cir. 1986) (recognizing that a class must not be 

vaguely defined and must be “sufficiently definite to conform to Rule 

23”). Although the parties here use the word “ascertainability,” they 

dispute only whether a class proponent must proffer an administratively 

feasible way to identify class members. That is therefore the only issue 

we decide.
8 BRISENO V. CONAGRA FOODS

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 (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 (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:

One or more members of a class may sue or 

be sued as representative parties on behalf of 

all members only if:

(1) the class is so numerous that joinder of all 

members is impracticable;

(2) there are questions of law or fact common 

to the class;

(3) the claims or defenses of the 

representative parties are typical of the 

claims or defenses of the class; and

(4) the representative parties will fairly and 

adequately protect the interests of the class.
BRISENO V. CONAGRA FOODS 9

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 pertinent to these findings 

include,” followed by four listed considerations. FED. R.

CIV. P. 23(b)(3) (emphasis added). If the Rules Advisory 

Committee had intended to create a non-exhaustive list in 

Rule 23(a), it would have used similar language. See 

Russello v. United States, 464 U.S. 16, 23 (1983) (“‘[W]here 

Congress includes particular language in one section of a 

statute but omits it in another section of the same Act, it is 

generally presumed that Congress acts intentionally and 

purposely in the disparate inclusion or exclusion.’” 

(alteration in original) (quoting United States v. Wong Kim 

Bo, 472 F.2d 720, 722 (5th Cir. 1972) (per curiam))). 

Moreover, Rule 23(b)(3) requires a court certifying a class 

under that section to consider “the likely difficulties in 

managing a class action.” FED. R. CIV. P. 23(b)(3)(D). 

Imposing a separate administrative feasibility requirement 

would render that manageability criterion largely 

superfluous, a result that contravenes the familiar precept

that a rule should be interpreted to “give[] effect to every 

clause.” Mackay, 742 F.3d at 864.
10 BRISENO V. CONAGRA FOODS

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 (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,5 the Court underscored that the Federal Rules of 

Civil Procedure result from “an extensive deliberative 

process involving . . . a Rules Advisory Committee, public 

commenters, the Judicial Conference, [the Supreme] Court, 

[and] Congress.” Id. at 620. The Court warned that “[t]he 

text of a rule thus proposed and reviewed limits judicial 

inventiveness” and admonished that “[c]ourts are not free to 

amend a rule outside the process Congress ordered.” Id. The 

lesson of Amchem Products is plain: “Federal courts . . . 

lack authority to substitute for Rule 23’s certification criteria 

a standard never adopted.” Id. at 622.

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”).

 5 The Court recognized, however, that a settlement-only class—

which by definition will not proceed to trial—can be certified without 

consideration of potential trial-management challenges under Rule 

23(b)(3)(D). See Amchem Prods., 521 U.S. at 620.
BRISENO V. CONAGRA FOODS 11

B

We recognize that the Third Circuit does require putative 

class representatives to demonstrate “administrative 

feasibility” as a prerequisite to class certification.6 See Byrd 

 6 Other circuits have cited the Third Circuit’s administrative 

feasibility standard but have not actually imposed the standard in the 

same manner as has the Third Circuit. The First Circuit has cited 

Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013), for the proposition 

that at the class certification stage, it must be anticipated that, by the time 

a case reaches the liability and claims administration stages, there will 

be an administratively feasible way to distinguish injured from uninjured 

class members. See In re Nexium Antitrust Litig., 777 F.3d 9, 19–20 (1st 

Cir. 2015). Requiring plaintiffs to propose a mechanism for eventually 

determining whether a given class member is entitled to damages is 

different from requiring plaintiffs to demonstrate an administratively 

feasible way to identify all class members at the certification stage. In 

Brecher v. Republic of Argentina, 806 F.3d 22 (2d Cir. 2015), the Second 

Circuit mentioned administrative feasibility and cited Marcus v. BMW of 

N. Am., LLC, 687 F.3d 583 (3d Cir. 2012), but administrative feasibility 

played no role in the court’s decision, which instead turned on the 

principle that a class definition must be objective and definite. Brecher, 

806 F.3d at 24–26. The Fourth Circuit has reversed class certification 

based in part on potential “administrative barrier[s]” to ascertaining class 

members and cited the Third Circuit in doing so. See EQT Prod. Co. v. 

Adair, 764 F.3d 347, 358–60 (4th Cir. 2014). But the “administrative 

barriers” identified by the court in EQT sounded in definitional 

deficiencies, numerosity questions, predominance problems, and 

management difficulties, see id.—issues that all implicate other class 

certification criteria. It is thus far from clear that the Fourth Circuit 

requires an affirmative demonstration of administrative feasibility as a 

separate prerequisite to class certification. Even the Third Circuit has 

cabined its administrative feasibility rule in recent cases. See In re Cmty. 

Bank of N. Va. Mortg. Lending Practices Litig., 795 F.3d 380, 396–97 

(3d Cir. 2015) (distinguishing Carrera as addressing particular 

“evidentiary problems”), cert. denied sub nom. PNC Bank v. Brian W., 

136 S. Ct. 1167 (2016); Byrd, 784 F.3d at 164 (clarifying that Carrera

did not create a “records requirement” at the class certification stage and 

instead “only requires the plaintiff to show that class members can be 

identified” (quoting Carrera, 727 F.3d at 308 n.2 (emphasis added))).
12 BRISENO V. CONAGRA FOODS

v. Aaron’s Inc., 784 F.3d 154, 162–63 (3d Cir. 2015); 

Carrera v. Bayer Corp., 727 F.3d 300, 306–08 (3d Cir. 

2013). The Third Circuit justifies its administrative 

feasibility requirement not through the text of Rule 23 but 

rather as a necessary tool to ensure that the “class will 

actually function as a class.” Byrd, 784 F.3d at 162. The 

Third Circuit suggests that its administrative feasibility 

prerequisite achieves this goal by (1) mitigating 

administrative burdens; (2) safeguarding the interests of 

absent and bona fide class members; and (3) protecting the 

due process rights of defendants. See Carrera, 727 F.3d at 

307, 310. The Seventh Circuit soundly rejected those 

justifications in Mullins v. Direct Digital, LLC, 795 F.3d 654 

(7th Cir. 2015), and the Sixth Circuit followed suit, see Rikos 

v. Procter & Gamble Co., 799 F.3d 497, 525 (6th Cir. 2015) 

(citing Mullins in declining to follow Carrera). We likewise 

conclude that Rule 23’s enumerated criteria already address 

the interests that motivated the Third Circuit and, therefore, 

that an independent administrative feasibility requirement is 

unnecessary.

1

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 WalMart Stores, Inc. v. Dukes, 564 U.S. 338, 362 (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 
BRISENO V. CONAGRA FOODS 13

23(b)(3) was designed to achieve.7 See Shelton v. Bledsoe, 

775 F.3d 554, 562 (3d Cir. 2015); Carrera, 727 F.3d at 307.

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 it specifically mandates that courts 

consider “the likely difficulties in managing a class action.” 

FED. R. CIV. P. 23(b)(3)(D).

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 

 7 Because the notice requirement is mandatory only for Rule 

23(b)(3) classes, the Third Circuit has declined to extend its 

“ascertainability” prerequisite, which includes its administrative 

feasibility requirement, to Rule 23(b)(2) classes. See Shelton, 775 F.3d 

at 562–63. We understand ConAgra’s arguments here to be similarly 

limited to Rule 23(b)(3) class actions.
14 BRISENO V. CONAGRA FOODS

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 (“[T]he Rule as now composed sets the requirements 

[courts] are bound to enforce.”).
BRISENO V. CONAGRA FOODS 15

2

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.

A

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, including individual notice to all 

members who can be identified through reasonable effort.” 

FED. R. CIV. P. 23(c)(2)(B) (emphasis added). In other 

words, “[t]he rule does not insist on actual notice to all class 

members in all cases” and “recognizes it might be impossible

to identify some class members for purposes of actual 

notice.” Mullins, 795 F.3d at 665. And courts have long 

employed cy pres remedies when some or even all potential 

claimants cannot be identified. See Six (6) Mexican Workers 

v. Ariz. Citrus Growers, 904 F.2d 1301, 1306 (9th Cir. 1990) 

(“In a majority of class actions at least some unclaimed 

damages or unlocated class members remain. The existence 

of a large unclaimed damage fund, while relevant to the 

manageability determination, does not necessarily make a 

class action ‘unmanageable.’” (citation omitted)). The 

notion that an inability to identify all class members 
16 BRISENO V. CONAGRA FOODS

precludes class certification cannot be reconciled with our 

court’s longstanding cy pres jurisprudence. See id.

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 
BRISENO V. CONAGRA FOODS 17

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 (quoting Benjamin Kaplan, A Prefatory 

Note, 10 B.C. INDUS. & COM. L. REV. 497, 497 (1969)).

B

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.

The fraud concern may be valid in theory, but “in 

practice, the risk of dilution based on fraudulent or mistaken 

claims seems low, perhaps to the point of being negligible.” 

Mullins, 795 F.3d at 667. This is especially true in class 

actions involving low-cost consumer goods. Why would a 

consumer risk perjury charges and spend the time and effort 

to submit a false claim for a de minimis monetary recovery? 

And even if consumers might do so, courts “can rely, as they 

have for decades, 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 avoid or minimize fraudulent 

claims. Id.
18 BRISENO V. CONAGRA FOODS

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.8 See id. 

“It is not unusual for only 10 or 15% of the class members

to bother filing claims.” Christopher R. Leslie, The 

Significance of Silence: Collective Action Problems and 

Class Action Settlements, 59 FLA. L. REV. 71, 119 (2007). 

Moreover, if certification is denied to prevent dilution, 

deserving class members “will receive nothing, for they 

would not have brought suit individually in the first place.” 

Mullins, 795 F.3d at 668. As the Seventh Circuit put it, 

“[w]hen it comes to protecting the interests of absent class 

members, courts should not let the perfect become the enemy 

of the good.” Id. at 666.

3

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 

 8 Theoretically, if there were non-legitimate claimants, they would 

dilute a cy pres fund. But that outcome would not impact bona fide 

claimants, who would have already received distributions. See Nachshin 

v. AOL, LLC, 663 F.3d 1034, 1036 (9th Cir. 2011) (explaining that, after 

distributions have been made to any claimants, “[t]he cy pres doctrine 

allows a court to distribute unclaimed or non-distributable portions of a 

class action settlement fund to the ‘next best’ class of beneficiaries” 

(emphasis added)). Nor would it affect the defendant, whose liability 

will already have been determined. See Six (6) Mexican Workers, 

904 F.2d at 1307 (“The use of cy pres or fluid recovery to distribute 

unclaimed funds may be considered only after a valid judgment for 

damages has been rendered against the defendant.”).
BRISENO V. CONAGRA FOODS 19

that defendants must have an opportunity to dispute whether 

class members really bought the product or used the service 

at issue.9 See id. (stating that a defendant has a “due process 

right to challenge the proof used to demonstrate class 

membership”); Marcus v. BMW of N. Am., LLC, 687 F.3d 

583, 594 (3d Cir. 2012) (“Forcing [defendants] to accept as 

true absent persons’ declarations that they are members of 

the class, without further indicia of reliability, would have 

serious due process implications.”).

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 

 9 Relatedly, ConAgra argues that an administrative feasibility 

requirement would protect its ability to meaningfully assert a res 

judicata defense in future actions asserting the same claims. But 

determining whether a plaintiff in that future action was a member of this 

class precluded from relitigating would be possible so long as the class 

definition in this action was clear (and ConAgra does not dispute that it 

is). If a future plaintiff were to assert a claim challenging the “100% 

Natural” label on Wesson oil purchased during the class period in one of 

the eleven states at issue, that would show that she was a member of the

class bound by the judgment. This would be so regardless of how 

“administratively feasible” it was to prove the entirety of the 

membership at the class certification stage in this action. See Geoffrey 

C. Shaw, Note, Class Ascertainability, 124 YALE L.J. 2354, 2374–78

(2015).
20 BRISENO V. CONAGRA FOODS

representatives bear the burden of demonstrating 

compliance with Rule 23. See Wal-Mart Stores, 564 U.S. at 

350 (“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 (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 (“[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 (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 
BRISENO V. CONAGRA FOODS 21

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, 

133 S.Ct. 1426 (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.10

Given these existing opportunities to challenge 

Plaintiffs’ case, it is not clear why requiring an 

administratively feasible way to identify all class members 

at the certification stage is necessary to protect ConAgra’s 

due process rights. As the Seventh Circuit put it, “[t]he due 

process question is not whether the identity of class members 

can be ascertained with perfect accuracy at the certification 

stage but whether the defendant will receive a fair 

opportunity to present its defenses when putative class 

members actually come forward.” Mullins, 795 F.3d at 670. 

ConAgra may prefer to terminate this litigation in one fell 

swoop at class certification rather than later challenging each 

individual class member’s claim to recovery, but there is no 

due process right to “a cost-effective procedure for 

challenging every individual claim to class membership.” 

Id. at 669.

 10 District courts also have discretion to allow limited discovery 

from absent class members if the particular circumstances of a specific 

case justify it. See WILLIAM B. RUBENSTEIN, NEWBERG ON CLASS 

ACTIONS § 9:13 (5th ed. 2013) (“[C]ertain forms of limited discovery 

from absent class members may be permitted in certain circumstances.”).
22 BRISENO V. CONAGRA FOODS

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 
BRISENO V. CONAGRA FOODS 23

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.

C

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”).
24 BRISENO V. CONAGRA FOODS

III

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.

AFFIRMED.