guage of Rule 23 neither provides nor implies that demonstrating an administratively feasi- ble way to identify class members is a prereq- uisite to class certification.” The Ninth Cir- cuit’s determination not to “interpose an addi- tional hurdle into the class certification pro- cess” focused on statutory interpretation and other circuits’ interpretations of Federal Rule of Civil Procedure 23. Rule 23 dictates the elements a party seeking class certification must demonstrate for a dis- trict court to certify a class. The moving party “bears the burden of showing that each of the four requirements of Rule 23(a) and at least one requirement of Rule 23(b) have been met.” Relevant here, subsection (a) requires four ele- ments to be met: numerosity, a common ques- tion of law or fact, typicality, and that the rep- resentatives will fairly and adequately protect the interest of the class members. The Ninth Circuit’s analysis of the plain mean- ing of the statute confirmed that the prerequi- sites identified in Rule 23(a) do not include or mention “administrative feasibility.” Rather, the court noted Rule 23(b)(3) already requires a court to consider “the likely difficulties in managing a class action.” Thus, to “[i]mpos[e] a separate administrative feasibility require- ment would render that manageability criteri- on largely superfluous, a result that contra- venes the familiar precept that a rule should be interpreted to ‘give[] effect to every clause.’” The court recognized the Third Circuit’s ad- ministrative feasibility prerequisite to class certification, but declined to follow suit be- cause the court determined the Third Circuit’s three justifications are “already address[ed]” under Rule 23 and so “an independent admin- (Continued from page 15) istrative feasibility requirement is unneces- sary.” First, the court reasoned that the manageabil- ity criterion of Rule 23(b)(D)(3)’s superiority requirement provides a mechanism to miti- gate administrative burdens, whereas an ad- ministrative feasibility requirement “would invite courts to consider the administrative burdens of class litigation ‘in a vacuum.’” Second, the interests of class members are safeguarded because neither Rule 23 nor due process requires actual, individual notice to class members. Moreover, theoretical absent class members in low-value consumer class actions are not economically incentivized to pursue individual litigation. Similarly, bona fide class members will be protected from dilu- tion by fraudulent members through the au- diting practices of class administrators and the reality of low participation rates in con- sumer class actions. Third, defendants’ due process rights to chal- lenge the proof used to demonstrate class membership are already protected under Rule 23 because defendants may mount challenges to the plaintiffs’ showings of membership eligi- bility at every stage of the litigation (initially against the class representatives, at claim ad- ministration, and if and when absent class members file claims for damages). Ultimately, the court rejected the Third Cir- cuit’s reasoning and joined the Sixth, Seventh, and Eighth Circuits in holding “the language of Rule 23 neither provides nor implies that demonstrating an administratively feasible way to identify class members is a prerequi- site to class certification.” Eyes will be on the Supreme Court to see whether it takes up this issue and addresses the circuit split in the coming terms. As for (Continued on page 17) NewYear’s Resolution Page 16 FBA/OC