I wish I could say that the Ninth Circuit and California Court of Appeal returned from their long (at least formal) vacation breaks with a vengeance, and cranked out a couple of dozen published opinions that are of the must-read variety.
But that'd be a lie.
Now, if you're a class action attorney (on either side), it's a somewhat interesting day for you. There are not one, but two class action opinions from the Ninth Circuit today.
But I'm definitely not going to talk about the first one. Because, sure, there are some people who may be keenly interested in the tortured history of competing state court class actions -- and the competing settlements that were then negotiated -- against Safeco Insurance, as well as whether the interlocutory review provisions of CAFA apply to minimal diversity and/or federal question cases.
But unless you're a class action/civil procedure geek -- and, I mean, a real geek -- the number of such interested persons is likely to be small.
The second class action opinion might be a tiny more interesting. Or at least accessible. Plaintiffs say that ConAgra lied (or was at least deceptive) when it called its Wesson cooking oil "100 percent natural" since it uses bioengineered ingredients. Sounds like a decent class action to me.
But ConAgra claimed that the class couldn't be certified because there's no "objective" way to tell who actually bought Wesson cooking oil during the relevant years. Since you don't have to sign anything or put your name down when you buy the stuff at the supermarket.
The district court disagreed. It certified the class. ConAgra was granted permission to appeal.
But the Ninth Circuit affirms.
As, in my view, of course it should.
Yes, there's no "objective" way to tell if someone's a member of the class. Just like there's no "objective" way to tell virtually anything in the universe. We rely on people's testimony. Their records. Their whatever. Yes, people can lie. And documents can be faked.
So what. That doesn't mean that a class action can't exist. Any more than it means that someone can't recover for personal injuries, or breach of contract, or any other legitimate -- or, potentially, factually illegitimate -- claim. You present your evidence and the trier of fact decides. End of story.
Much less should a company get away with (allegedly) deceiving millions of people about its products just because you don't have to fill out a form in triplicate and have your picture taken in order to buy that product. Too bad. People can testify, under oath, that they bought the thing. If ConAgra thinks that they're lying, prove it. Good luck. If ConAgra's evidence is believed, that class member won't recover. But the fact that ConAgra doesn't feel like taking someone's word for it no more stops a class action from being certified than the fact that a different class action defendant doesn't feel like taking a class member's word for it that the product is causing them immense physical pain would stop a class action there. Go ahead. Prove it. Not a barrier to class certification.
Judge Friedland reaches this same conclusion using words and concepts that are a bit more articulate.
But to the same end.
