author: FRIEDLAND, Circuit Judge:

text:
    Robert BRISENO, individually and on behalf of all others similarly situated, Plaintiff-Appellee, v. CONAGRA FOODS, INC., Defendant-Appellant.
    No. 15-55727
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted September 12, 2016 San Francisco, California
    Filed January 3, 2017

      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 Plaintiff-Appellee.
    Before: WILLIAM A. FLETCHER,. MORGAN B. CHRISTEN, and MICHELLE T. PRIEDLAND, Circuit Judges.
   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 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.

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 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:

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.

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).

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. 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 28 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 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 “ ‘determining] 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:

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.

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 “[prerequisites,” 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, 104 S.Ct. 296, 78 L.Ed.2d 17 (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.

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, 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, 117 S.Ct. 2231. The Court warned that “[t]he text of a rule thus proposed and reviewed limits judicial inventiveness” and admonished that “[c]o.urts 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, 117 S.Ct. 2231.

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”).

B

We recognize that. the Third Circuit does require putative class representatives to demonstrate “administrative feasibility” as a prerequisite to class certification. See Byrd 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 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. 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 méchanism 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 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.”).

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 circum stances, 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 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 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 á 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)).

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.

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. 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 that defendants must have an opportunity to dispute whether class members really bought the product or used the service at issue. 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 thé búrdén 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 labél 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.

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.

If the concern is that claimants in cases like this will eventually offer only a “self-serving affidavit” as proof of class mém-bership, 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 prod-üct 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. Med-tox 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 ho 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”).

Ill

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.

      . We address ConAgra's other challenges to the district court's class certification order in a concurrently filed memorandum disposition.

      . We refer to Plaintiffs’ amended motion for class certification, which is the subject of this appeal.

      . ConAgra called this a failure of "ascertaina-bility.” We refrain from referring to "ascer-tainability” in this opinion because courts ascribe widely varied meanings to that term. For example, some courts use the word "as-certainability” 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 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 denied 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.

      .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.

      . 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, 117 S.Ct, 2231.

      . 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 ca.se 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. 201-5) (distinguishing Carrera as addressing particular “evidentiary problems”), cert. denied sub nom. PNC Bank v. Brian W., — U.S. —, 136 S.Ct. 1167, 194 L.Ed.2d 241 (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, 121 F.3d at 308 n.2 (emphasis added))),

      . 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.

      . 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.”).

      . 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).

      . District coürts 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.”).


source: Caselaw Access Project

author: McKEOWN, Circuit Judge:

license: Public Domain

text:
    CHAN HEALTHCARE GROUP, PS, a Washington professional services corporation, Plaintiff-Appellee/Respondent v. LIBERTY MUTUAL FIRE INSURANCE CO.; Liberty Mutual Insurance Company, foreign insurance companies, Defendants-Appellants/Petitioners
    No. 16-35210, No. 16-80019
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted December 6, 2016 Seattle, Washington
    Filed January 3, 2017

      Joshua S. Lipshutz (argued) and Joseph C. Hansen, Gibson Dunn & Crutcher LLP, San Francisco, California; Russell R. Yager, Vinson <& Elkins LLP, Dallas, Texas; John M. Silk, Wilson Smith Cochran Dickerson, Seattle, Washington; for Defendants-Áppellants/Petitiqhers.
    David Elliott Breskin (argued) and Cynthia J. Heidelberg, Breskin Johnson & Townsend PLLC, Seattle, Washington, for Plaintiff-Appellee/Respondent.
    Before: M. MARGARET McKEOWN, RICHARD C. TALLMAN, and MORGAN B. CHRISTEN, Circuit Judges.
   OPINION

McKEOWN, Circuit Judge:

This consolidated appeal presents an issue of first impression in our circuit, namely the scope of appellate jurisdiction to review a district court’s remand order in a class action case founded on federal question jurisdiction. Remand orders are not appealable as a matter of course. 28 U.S.C. § 1447(d). Nonetheless, as part of the Class Action Fairness Act of 2005 (“CAFA”), Congress created an exception under 28 U.S.C. § 1453(c)(1) that permits courts of appeals to accept appeals from remand orders in cases that are removed “under this section.” Joining our sister circuits, we conclude that this interlocutory review provision is limited to orders granting or denying remand of diversity class actions brought and removed, under CAFA.

Background

This case has a long and tortured procedural history that spans a series of interrelated lawsuits. One player is central to the action: attorney David Breskin, who represented plaintiff Dr. David Kerbs in previous rounds of litigation and who represents Chan' Healthcare Group, PS (“Chan”) in two ongoing disputes, including this One. •

Breskin got things going in 2010. On May 13 of that year, he filed a putative class action on behalf of Dr. Kerbs in Washington state court against defendants Safeco Insurance Company of Illinois, Inc. and Safeco Insurance Company of America (collectively “Safeco”). Dr. Kerbs alleged that Safeco violated Washington law' by using a computerized bill-review system that automatically reduced the amounts paid to medical providers pursuant to Personal Injury Protection coverage in automobile insurance contracts. The superior court certified a class of ‘Washington health care providers who, from May 13, 2006, through March 31, 2011, submitted [claims] to Safeco for payment” under their patients’ Personal Injury Protection policies and received “less than the amount billed based solely on a [computerized] reduction.”

In May 2012, Dr. Kerbs and Safeco reached a class-wide settlement agreement in which Safeco agreed to pay the class members for Safeco’s past conduct. As to future claims, Safeco agreed, among other things, to stop using the computerized bill-review system and start using the “FAIR Health database” to determine the proper amount of reimbursement. In approving the settlement, the superior court -explained that the use of the FAIR Health database “does not, in and of itself, breach any duty or obligation under any applicable law or contract requiring Safeco to pay or reimburse ‘usual and customary’ or ‘reasonable’ charges for Covered Treatments.”

In 2014, the drama continued in another state: Lebanon Chiropractic Clinic, P.C. (“Lebanon”) commenced a separate class action lawsuit—based on the same allegedly improper reductions of reimbursements to medical providers—in Illinois state court against Safeco and its parent, Liberty Mutual Fire Insurance Company and Liberty Mutual Insurance Company (collectively, “Liberty”). Lebanon Chiropractic Clinic, P.C. v. Liberty Mut. Ins. Co., No. 5-15-0111, 2016 WL 546909, at *1 (Ill. App. Ct. Feb. 9, 2016). This new case—filed without Breskin’s involvement—was not limited to one state, but instead challenged Safeco’s and Liberty’s review and payment practices in multiple states, including both Illinois and Washington. See id. at *2.

In October 2014, Lebanon, Safeco, and Liberty reached a settlement agreement eerily similar to the one reached in the earlier Washington state case. Like the settlement in the Kerbs case, “with regard to future claims, Liberty agreed to implement certain measures, such as the continued use of the FAIR Health database.” Id. at *3. After preliminary approval of the settlement agreement, Breskin reentered the scene.

Breskin, on behalf of Dr., Kerbs, objected to the settlement, contending that the proposed settlement conflicted with the Kerbs settlement in the earlier Washington case (as well as that the proposed settlement was generally unfair to Washington providers and the Illinois court did not have jurisdiction). Simultaneously, Breskin unsuccessfully petitioned the Washington state court to reopen the Kerbs case and enjoin the proposed settlement in Illinois. Id. at *4. Although the Illinois court concluded that there was no conflict between the proposed settlement and the earlier Kerbs settlement, it ordered that the proposed settlement “include! ] specific language that the Lebanon settlement would not conflict in any way with the Kerbs settlement.” Id. at *5. Dr. Kerbs did not prevail in his appeal regarding the Illinois settlement. See id. at *15.

This history provides the necessary backdrop to understanding the appeal before us. While the Lebanon appeal in Illinois was still pending, Breskin filed two new offensive class action lawsuits in Washington state court. The first, filed in August 2015, was filed on behalf of Chan against Safeco (the Safeco case). The second, filed in early September 2015, was filed on behalf of Chan against Liberty and is the case on appeal to us (the Liberty case). The complaints make similar allegations that Safeco’s and Liberty’s use of the FAIR Health database to set reimbursement amounts violates various Washington statutes. All parties agree that, on the face of the complaint in the Liberty case, there was no basis for federal jurisdiction.

Liberty asserts that things changed when Chan filed its reply brief on its motion for declaratory relief. In the initial motion, filed on October 2, 2015, Chan sought a declaratory judgment that the Illinois settlement was unenforceable in Washington. After Liberty responded that it “might elect simply to forego raising Lebanon as a defense in this case,” Chan argued in its October 26, 2015 reply that “the Lebanon agreement could not be applied to bar Chan’s Washington [state law] claim against [Liberty] consistent with Chan’s due process rights.”

On the basis of Chan’s reply brief, Liberty removed the case to federal court two days later, on October 28, 2015. Liberty explained that Chan’s reply brief revealed that Chan was raising a standalone federal due process claim, thus creating federal question jurisdiction under 28 U.S.C. § 1331. Because Liberty contended that Chan first raised the federal question in the litigation in its reply brief, Liberty argued that its removal fell “within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.” . 28 U.S.C. § 1446(b)(3).

Based on various papers received and filings made in this case and other cases more than thirty days before Liberty removed, Chan challenged the timeliness of Liberty’s removal. Chan also argued that there was no federal question jurisdiction because its federal due process claim was not raised as an affirmative claim, but instead in response to Liberty’s assertion of the Illinois settlement as a defense.

The district court granted Chan’s motion to remand the case to state court based solely on the ground that removal was untimely. The court explicitly declined to reach whether federal question jurisdiction was present. The court also awarded fees to Chan, in the amount of $18,330.00, after finding that Liberty “had no objectively reasonable basis for removal, particularly given defense counsel’s involvement with the related cases and their acknowledgments about the Chan motions made to the court in the Illinois appeal.”

Liberty petitions for review of the district court’s remand order and appeals the fee award.

Analysis

I. Jurisdiction to Review the Merits of the Remand Order

The default rule on remand orders is that “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise.” 28 U.S.C. § 1447(d); see Kircher v. Putnam Funds Trust, 547 U.S. 633, 641, 126 S.Ct. 2145, 165 L.Ed.2d 92 (2006) (explaining that § 1447(d) usually “stands in the way” of reviewing a district court’s remand order); Watkins v. Vital Pharm., Inc., 720 F.3d 1179, 1181 (9th Cir. 2013) (per curiam) (“District court remand orders generally are not reviewable on appeal.”).

At issue here is a congressional carve-out of appellate jurisdiction that was adopted for class action cases as part of CAFA. Section 1453(c)(1), entitled Review of Remand Orders, provides that, when a case is removed “under this section,’-’ “a court of appeals- may accept an appeal from an order of a district court granting or denying a motion to remand a class action.” 28 U.S.C. § 1453(c)(1). The question we consider is whether we have jurisdiction to review the district court’s order remanding this class action when the asserted basis for jurisdiction is a federal question rather than traditional diversity or CAFA minimal diversity jurisdiction. Chan argues that § 1453(c)(1) is limited to diversity actions under CAFA. Liberty takes a more expansive view, claiming that there is no CAFA-based limitation and that all class actions are covered by this grant of jurisdiction.

To understand the genesis of the appeal provision and its place in the statutory structure, it is important to review the multiple provisions adopted as part of CAFA, particularly 28 U.S.C. § 1453. In broad terms, CAFA significantly expanded federal diversity jurisdiction over class and mass actions. Congress added a number of statutory provisions to the United States Code to ensure “[f]ederal court consideration of interstate cases of national importance.” Standard Fire Ins. Co. v. Knowles, — U.S. —, 133 S.Ct. 1345, 1350, 185 L.Ed.2d 439 (2013) (emphasis added) (citation omitted). One of the most notable additions is § 1332(d)(2), which was added as a new subsection in the diversity statute and allows a class action to be brought in federal court if “the matter in controversy exceeds the sum or value of $5,000,000” and “any member of a class of plaintiffs is a citizen of a State different from any defendant.” This provision is noteworthy because it expands the jurisdiction of federal courts: unlike traditional diversity cases under § 1332(a), which require complete diversity (i.e., each plaintiff is a citizen of a different state than each defendant), Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 267, 2 L.Ed. 435 (1806), § 1332(d)(2) supports jurisdiction when there is minimal diversity (i.e., one plaintiff is a citizen of a different state than one defendant).

To pave the way for class action cases- to get into federal court, Congress also enacted a new removal provision, § 1453, as part of CAFA. Section 1453(b) governs the general procedure for removing a case and eliminates some of the obstacles that apply in ordinary diversity cases. Section 1453(c) is designed to provide a limited means, subject to strict timing controls on both the parties and the court, for appellate review of remand orders in cases removed under § 1453(b).

In examining the scope of appellate jurisdiction under § 1453, we look to the text, structure, and purpose behind the statute. See Abramski v. United States, — U.S. —, 134 S.Ct. 2259, 2267, 189 L.Ed.2d 262 (2014) (explaining that statutory interpretation involves interpreting the words in light of the statutory context, which includes the “structure, history, and purpose” of the statute). Having done so, those considerations convince us that § 1453 is limited to CAFA-based diversity cases and does not expand interlocutory appellate review to remand orders where removal is predicated on federal question jurisdiction.

We start with § 1453(a), the definitional section. Here, “the terms ‘class’, ‘class action’, ‘class certification order’, and ‘class member’ shall have the meanings given such terms under section 1332(d)(1).” Significantly, subsection (a) cross-references a second CAFA provision, as § 1332(d) was added in its entirety pursuant to CAFA. Section 1332(d)(l)’s definitions also apply to the new minimal diversity provision, § 1332(d)(2).

Subsection (b) of § 1453 then addresses removal of class actions:

A class action may be removed to a district court of the United States in accordance with section 1446 (except that the 1-year limitation under section 1446(c)(1) shall not apply), without regard to whether any defendant is a citizen of the State in. which this action is brought, except that such action may be removed by any defendant without the consent of all defendants.

Finally, in subsection (c), the statute spells out particularized requirements for appellate review:

Section 1447 shall apply to any removal of a case under this section, except that notwithstanding section 1447(d), a court of appeals may accept an appeal from an order of a district court granting or denying a motion to remand a class action to the State court from which it was removed if application is made to the court of appeals not more than 10 days after entry of the order.

Notably, this subsection circumscribes its applicability to a case removed “under this section,” presumably meaning § 1453. By invoking the phrase “notwithstanding section 1447(d),” the statute brushes aside § 1447(d)’s traditional bar on reviewing remand orders for a narrow subset of orders, namely, “order[s] of a district court granting or denying a motion to remand a class action to the State court from which it was removed if application is made to the court of appeals not more than 10 days after entry of the order.”

In our view, § 1453(c)(1)’s use of “removal of a case under this section” limits the universe of appealable orders to, those in class action cases brought under CAFA. That conclusion requires a few interpretative steps. The word “section” is best understood to reference an entire statutory section and, because the statute uses the phrase “under this section,” it refers to the statutory section in which the language appears, namely, § 1453. This approach fits with the way the word “section” is used in common parlance and the normal meaning that legal dictionaries ascribe to it. See, e.g., Key Tronic Corp. v. United States, 511 U.S. 809, 814, 114 S.Ct. 1960, 128 L.Ed.2d 797 (1994); Metro One Telecomms., Inc. v. Comm’r, 704 F.3d 1057, 1059-60 (9th Cir. 2012); Section, Black’s Law Dictionary (10th ed. 2014) (defining “section” as “[a] distinct part or division of a writing, esp. a legal instrument” and explaining that it is abbreviated with a section symbol, §); Section, Ballentine’s Law Dictionary 1153 (3d ed. 1969) (defining “section” as “[a] subdivision or paragraph of a statute or code”). The text of § 1453(c)(1) itself uses “section” in the same way, stating, just before the “under this section” language, that “[s]ection 1447 shall apply to any removal of a case.” The other circuits that have addressed the meaning of § 1453(c)(1)’s phrase “under this section” all agree that it points to removal under § 1453. See Saab v. Home Depot U.S.A., Inc., 469 F.3d 758, 759 (8th Cir. 2006); Patterson v. Dean Morris, L.L.P., 448 F.3d 736, 742 (5th Cir. 2006).

'Construing “under this section” as a reference to § 1453 in its entirety, we also look to the other parts of the section. Section 1453(a), particularly when read in conjunction with the section as a whole, supports the reading that § 1453’s reach is limited to CAFA-related diversity cases. That subsection defines relevant terms, like “class” and “class action,” by reference to the diversity statute, § 1332—more specifically, to a provision added by CAFA, § 1332(d)(1), which also provides the relevant definitions for CAFA’s minimal diversity provision, § 1332(d)(2), See 28 U.S.C. § 1453(a). On its own, the provision defines class action broadly, but it does not stand alone. Rather it fits within and must be read in conjunction with the entire “section.”

An even stronger textual basis for reading § 1453 as' excluding federal question cases comes in § 1453(b), which states that “[a] class. action may be removed to a district court of the United States in accordance with section 1446 (except that the 1-year limitation under section 1446(c)(1) shall not apply), without regard to whether any defendant is a citizen of the State in which the action is brought, except that such action may be removed by any defendant without the consent. of all defendants.” While the text could be interpreted to . cover both diversity and federal question. cases (as both types of cases “may be removed ... in accordance with section 1446”), it is most naturally read to cover only the former because the exceptions are directed to diversity cases.

In particular, § 1453(b) includes two references that are linked exclusively to diversity and fails to include similar provisions specific to federal question jurisdiction. First, subsection (b) excepts “the 1-year limitation under section 1446(c)(1).” Section 1446(c)(1) is titled “Requirements; Removal Based on Diversity of Citizenship,” and its one-year limitation for removal applies to diversity cases alone. 28 U.S.C. § 1446(c)(1). Second, subsection (b) permits removal “without regard to whether any defendant is a citizen of the State in which the action is brought.” The statutory basis for that prohibition is contained in § 1441(b)(2), a provision aptly titled “Removal Based on Diversity of Citizenship” that also applies only to diversity cases. It would be strange for subsection (b) to embrace a class of cases—namely, federal question eases—to which two of its exceptions never apply.

That the final proviso in § 1453(b)— “such action may be removed by any defendant without the consent of all defendants”—is not specifically pegged to diversity, see 28:, U.S.C. § 1446(b)(2)(A), does .not change our conclusion. Although this final exception is not unique to CAFA cases, it is consistent with them and fills out the litany of applicable exceptions. The general focus on diversity cases and failure to carve out exceptions applicable only to federal question cases underscores that § 1453(b) is directed to the former type of case.

Finally, § 1453(d) further solidifies the targeted nature of § 1453. That subsection says that § 1453 “shall not apply to any class action that solely involves” three enumerated classes of state- and federal-law claims involving securities and corporate governance. Subsection (d) exactly mirrors a CAFA provision, § 1332(d)(9), which places those same three categories, of claims outside of CAFA’s minimal diversity provision. The overlapping scope of those two provisions buttresses the conclusion that the statutes both operate in the CAFA diversity sphere.

CAFA’s legislative history supports our conclusion that' the limited grant of appellate review is tied to CAFA’s minimal diversity provisions. See Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005) (explaining that the potential for unreliability of legislative history means that it cannot override statutory- text, but noting that it may still inform the analysis). The Senate Report indicates that “[t]he purpose of [§ 1453(c) ] is to develop a body of appellate law. interpreting the legislation without unduly delaying the litigation of class actions.” S. Rep. No. 109-14, at 49 (2005); see also id. (encouraging appellate courts to “create a ... body of clear and consistent guidance for district courts that will be interpreting this legislation” by “reviewing] cases that raise jurisdictional issues likely to arise in future cases”). References to “this legislation” are clearly directed to the CAFA legislation, whose additions relate almost entirely to the minimal diversity class actions. Our reading accords with what the Supreme Court has characterized as CAFA’s “primary objective”: “[fjederal court consideration of interstate cases of national importance.” Knowles, 133 S.Ct. at 1350 (emphasis added) (citation omitted). Indeed, the particular concerns motivating CAFA were not attendant to class actions pleading a federal question because those cases could already be removed to federal court under § 1441(a).

Although our court has not previously addressed the precise issue here, wé have confronted the question whether there is appellate jurisdiction over a non-CAFA issue that was decided in an order independently appealable under § 1453(c)(1). See Nevada v. Bank of Am. Corp., 672 F.3d 661 (9th Cir. 2012). We said that the answer is yes, analogizing to a court’s ability to review any issue fairly included within an order certified for interlocutory review under 28 U.S.C. § 1292(b). Nevada, 672 F.3d at 672-73. We acknowledge that Nevada does not dictate the outcome in this case, but note that its analysis would have been wholly unnecessary if § 1453(c)(1) could already sustain an appeal from a grant or denial of remand of any class action. Thus, our precedent counsels in favor of the determination that jurisdiction is lacking here.

In reaching our conclusion, we are in good company. The Fifth, Sixth, and Eighth Circuits have,all concluded that-the review provisions of 28 U.S.C. § 1453(c) are limited to class actions brought under CAFA. As the Eighth Circuit put it, “we do not interpret ‘class action’ as it is employed in § 1453(c) to encompass all class actions. Rather, we must limit § 1453(c)’s review provisions to those class actions brought under CAFA.” Saab, 469 F.3d at 759; see also In re UPS Supply Chain Sols., Inc., No. 08-0513, 2008 WL 4767817, at *2 (6th Cir. Oct. 27, 2008); Patterson, 448 F.3d at 742; Wallace v. La. Citizens Prop. Ins. Corp., 444 F.3d 697, 700 (5th Cir. 2006); 14C Charles Alan Wright et al., Federal Practice and Procedure § 3740 (4th ed. 2016) (“The courts of appeals thus far have been interpreting § 1453 to permit appeals of grants and denials of motions to remand only in cases ostensibly removed pursuant to CAFA.”). Although the analysis in these cases is a bit cursory in tracing the statutory provisions, we agree with, their ultimate focus on § 1453(c)(1) as a limited means of appealing remand orders in diversity class actions brought and removed under CAFA.

Because we lack jurisdiction to review the district court’s remand order in this class action predicated on federal question jurisdiction, we dismiss Liberty’s petition for permission to appeal.

II. District Court’s Fee Award

We next turn to the district court’s award of fees to Chan, which we have jurisdiction to review under 28 U.S.C. § 1291. A district court’s statutory authority to award fees is spelled out in 28 U.S.C. § 1447(c): “An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.” As the Supreme Court has explained, “[a]b-sent unusual circumstances, courts may award attorney’s fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141, 126 S.Ct. 704, 163 L.Ed.2d 547 (2005). Here, the district court’s decision to remand rests entirely on the conclusion that Liberty’s notice of removal was untimely under the 30-day time limitation of the general removal statute, 28 U.S.C. § 1446(b). Because that conclusion is incorrect, the fee award must be vacated. See. Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1250 (9th Cir. 2006) (explaining that an award of fees is reviewed for abuse of discretion and can be overturned if it is based on an erroneous determination of law). We offer no judgment with respect to whether federal question jurisdiction provides an appropriate basis for removal.

It is undisputed that the initial pleading did not provide a basis for removal (there being no basis for federal question jurisdiction under § 1331 or diversity jurisdiction under § 1332). -However, “if the case stated by the initial pleading, is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.” Id. § 1446(b)(3).

Chan’s October 26, 2015 reply brief was' the first filing in the present case that referenced á due process claim. Chan relies on three earlier events (all of which occurred more than thirty days before Liberty filed its notice of removal) which Chan says started the clock by putting Liberty on notice that Chan would raise a federal due process claim. First, Chan points to a similar motion that was filed on September 8, 2015, in the Safeco case, in which Safeco has the same counsel as- Liberty. Second, Chan points to an email exchange on September 17, 2015 between its counsel and Liberty’s counsel agreeing to hear the declaratory judgment motion in the Liberty case together with the similar motion in the Safeco case. Finally, Chan points to Dr. Kerbs’s September 25, 2015 request for an extension of time in the pending Illinois appellate court case, where he referred to the motions made in the Safeco and Liberty cases. The district court agreed with Chan and explained that “the September 8th, 17th and 25th documents, collectively, constitute ‘other’ papers from which it could be ascertained that the case was removable on the basis of a federal question.” We reject this approach to notice' because it runs afoul of our precedent and would place a burden on defendants to read the tea leaves and anticipate claims where none have been asserted. ■ ■

For starters, the September 8 motion for declaratory judgment in one of the Washington actions—mentioned in the September 25 extension of time request in the Illinois appeal—was filed in a different case against another defendant (Safeco), so there was no “receipt by the defendant” Liberty. It simply is not enough to say that Safeco and Liberty had the same counsel. They are different parties in different lawsuits. Nor did the September 25 filing make clear that a federal claim would be raised in the Liberty case, let alone convert the threatened motion from one that “would be filed” to one that “had been filed.”

The September 17 email exchange from Chan to Liberty's counsel discussed having a consolidated hearing on the nearly identical declaratory judgment motions against Safeco and Liberty. This communication about combining proceedings did not somehow import into the Liberty case the federal claim that was actually raised in the Safeco case.

More fundamentally, all of the documents fail to trigger the time limit because they are not “other paper[s] from which it may first be ascertained that the case is one which is or has become removable.” 28 TJ.S.C. § 1446(b)(3). The plain language of the statute requires a paper that shows a ground for removal that was previously unknowable or unavailable. See 14C Charles Alan Wright et ah, Federal Practice and Procedure § 3731 (4th ed, 2016). Documents that raise federal questions, filed in cases other than the one at hand, did not show that Chan’s case “is or has become removable.” . _

Section 1446(b) is triggered upon “the receipt by the defendants of a paper in the action from which removability may be ascertained.” Eyak Native Vill. v. Exxon Corp., 25 F.3d 773, 779 (9th Cir. 1994) (emphasis omitted). For obvious reasons, “we don’t charge defendants with notice of removability until they’ve received a paper that gives them enough information to remove.” Durham, 445 F.3d at 1251. Because the focus remains on whether the case “is or has become removable,” counsel’s clairvoyant sense of what actions a plaintiff might take plays no role in the analysis. See Kuxhausen v. BMW Fin. Servs. NA LLC, 707 F.3d 1136, 1141-42 (9th Cir. 2013). Under this approach, a defendant is not put to the impossible choice of subjecting itself to fees and sanctions by filing a premature (and baseless) notice of removal or losing its right to remove the case by waiting too long. See Durham, 445 F.3d at 1251.

In contrast to the documents referenced by the district court, Chan’s reply brief— which explicitly referenced due process— was filed in this litigation on October 26, 2015. We have explicitly held that a reply brief can constitute an “other paper” for purposes of § 1446(b). See Eyak. Native Vill. 25 F.3d at 779. Liberty filed its notice of removal just two days after receiving the reply brief, falling well within the thirty-day time limit established by § 1446(b)(3).

Because Liberty’s notice of removal was not untimely, Liberty’s arguments on that score were objectively reasonable. Untimeliness was the, sole basis for the district court’s fee award—the court did not reach the question whether federal question jurisdiction exists or whether Liberty’s arguments on that ground were objectively reasonable, nor do we take a position on these issues. We vacate the district court’s fee award and remand the case for proceedings consistent with this opinion.

PETITION FOR PERMISSION TO APPEAL DISMISSED; ORDER GRANTING FEES VACATED AND REMANDED.

Each party shall bear its own fees and costs on appeal.

      . Breskin brought two separate class action lawsuits in Washington state court against other insurers, both of which resulted in settlements that allowed use of the FAIR Health database. The courts there similarly determined that the “use of FAIR Health data in the payment of [Personal Injury Protection] claims does not, in and of itself, breach any applicable duty or law.”

      . In addition to §§ 1332(d) and 1453, CAFA also includes §§ 1711-1715, which relate to approval of settlements in class actions.

      . Subsection (d) is the exception provision. It lists three categories of claims, not applicable here, that fall outside the scope of § 1453 when no other claims are raised in a case.


author: NGUYEN, Circuit Judge:

text:
    Paul CONNORS, Petitioner, v. NATIONAL TRANSPORTATION SAFETY BOARD; Michael P. Huerta, Administrator, Federal Aviation Administration, Respondents.
    No. 15-70333
    United States Court of Appeals, Ninth Circuit.
    Filed January 4, 2017
    Submitted November 9, 2016  Pasadena, California

      Robert J. Hajek, Esq., Del Mar, California, for Petitioner.
    Benjamin C. Mizer, Principal Deputy Assistant Attorney General; Mark B. Stern and Katherine Twomey Allen, Attorneys, United States Department of Justice, Washington, D.C. for Respondent Michael P. Huerta.
    Before: MARSHA S. BERZON and JACQUELINE H. NGUYEN, Circuit Judges, and JACK ZOUHARY, District Judge.

       The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

       The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio, sitting by designation.

   OPINION

NGUYEN, Circuit Judge:

Paul Connors petitions for review of a National Transportation Safety Board (“NTSB”) decision affirming an order of the Federal Aviation Administration (“FAA”) revoking his aircraft registration certificate. Connors admitted to the FAA that he used his aircraft to transport marijuana. The FAA revoked his registration certificate because “the aircraft was used to carry out, or facilitate, an activity that is punishable” as a drug-related felony. 49 U.S.C. § 44106(b)(1)(A). Separate, state court criminal proceedings against Connors were dismissed after the trial court suppressed the drug evidence found on his plane.

Connors argues that § 44106 does not apply to him because, in light of the suppression order, his act is no longer “punishable.” Under the statute’s plain language, however, the proper inquiry is whether the “activity” is “punishable,” not whether the certificate holder is at risk of being punished. Because the activity— transporting marijuana—was punishable as a felony, Connors’s certificate was properly revoked even though he may no longer be subject to punishment under state law.

I.

Connors flew his Lancair aircraft to a municipal airport in Portales, New Mexico. When he landed, law enforcement personnel searched the aircraft and found 15 pounds of marijuana. He was charged in state court with possession of marijuana with intent to distribute. N.M. Stat. Ann. § 30-31-22(A)(l). The district attorney dismissed the charges with prejudice after the trial court found the search warrant invalid and suppressed the evidence.

After the evidence was suppressed but before the criminal charges were dismissed, the FAA revoked Connors’s aircraft registration certificate for his knowing use of the aircraft to transport marijuana in violation of 49 U.S.C. § 44106(b)(1). In response, Connors admitted that he “knowingly transported” the marijuana but appealed the FAA’s revocation order on the basis of the state court’s suppression order.

It was while the administrative proceedings were pending before an NTSB administrative law judge (“ALJ”) that Connors’s criminal case was dismissed. The ALJ affirmed the FAA’s revocation order, and, after Connors appealed, the NTSB affirmed the ALJ’s decision.

II.

Section 44106 authorizes the FAA to revoke an aircraft registration certificate for a controlled substance violation. Appeals from a revocation order are heard by the NTSB. 49 U.S.C. §§ 1133(2), 44106(d). We have jurisdiction to review the NTSB’s decision pursuant to 49 U.S.C. § 1153(a).

Review of an NTSB decision is governed by the Administrative Procedure Act, 5 U.S.C. § 706. Andrzejewski v. FAA, 563 F.3d 796, 799 (9th Cir. 2009). We may set aside the decision only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. (quoting 5 U.S.C. § 706(2)(A)). We review legal questions de novo. Janka v. Dep’t of Transp., 925 F.2d 1147, 1149 (9th Cir. 1991). We apply Chevron deference, however, to the agency’s interpretation of the statute it administers. See Donnelly v. FAA, 411 F.3d 267, 271 (D.C. Cir. 2005) (citing Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)) (determining whether FAA reasonably interpreted “use” in 49 U.S.C. § 44710(b)(2) to revoke airman’s certificate).

Under Chevron, “we are prohibited from substituting our ‘own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency’ ” when Congress has not directly addressed the provision’s meaning. Redmond-Issaquah R.R. Pres. Ass’n v. Surface Transp. Bd., 223 F.3d 1057, 1061 (9th Cir. 2000) (quoting Chevron U.S.A., Inc., 467 U.S. at 844, 104 S.Ct. 2778). If, on the other hand, “the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” The Wilderness Soc’y v. U.S. Fish & Wildlife Serv., 353 F.3d 1051, 1059 (9th Cir. 2003) (en banc) (quoting Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778).

III.

In general, an aircraft may not be operated in the United States unless -it is registered. 49 U.S.C. § 44101(a). Upon a successful application, the FAA issues a certificate of registration to the aircraft’s owner. Id. § 44103(a). The FAA may revoke a registration certifícate, however, if the aircraft is knowingly used for felonious drug-related activity:

[T]he [FAA] shall issue an order revoking the certifícate of registration for an aircraft ... if [it] finds that—(A) the aircraft was used to carry out, or facilitate, an activity that is punishable by ... imprisonment for more than one year under a law ... related to a controlled substance ... ; and (B) the owner of the aircraft permitted the use of the aircraft knowing that the aircraft was to be used for the activity ....

49 U.S.C. § 44106(b)(1) (emphasis added).

Connors argues that “punishable” means that “there must at least be the possibility of conviction and imprisonment” under the law, and .the suppression of the evidence from his plane foreclosed any chance of his conviction. (Emphasis added). The NTSB concluded that under the plain language of the statute, “punishable” refers to the “proscribed activity”—not, as Connors would have it, a “person” or his specific “act.” Applying that concept to Connors, the agency noted that transporting marijuana, which Connors admitted he “knowingly” did, was an “activity [that] carried with it the possibility of more than one year imprisonment” under New Mexico law.

We agree that § 44106(b)(1) plainly connects “punishable” to the “activity,” such that an aircraft certificate may be revoked regardless of whether the certificate holder could be convicted for “carrying] out” or “facilitating]” the activity. Notably, the statute applies where a third party conducts the punishable activity, as long as the owner knows that the aircraft was used for the activity. See 49 U.S.C. § 44106(b)(1)(B). This third-party scenario, express in the statute, confirms that the statute applies whether or not the aircraft owner is at risk of criminal punishment. Nothing in the statutory language ties the revocation of an aircraft’s registration certificate to the possibility of a successful criminal prosecution of the owner.

Moreover, the statute provides an exception for acquittals that would be unnecessary if Connors’s interpretation were correct. The FAA may not revoke the registration of a certificate holder who “is acquitted of all charges related to a controlled substance in an indictment or information arising from the [felonious drug-related] activity.” 49 U.S.C. § 44106(e)(1). If “punishable” required “the possibility of conviction and imprisonment,” an acquittal would categorically exclude such possibility, see U.S. Const. amend. V; Evans v. Michigan, — U.S. —, 133 S.Ct. 1069, 1074, 185 L.Ed.2d 124 (2013) (“[T]he Double Jeopardy Clause bars retrial following a court-decreed acquittal.... ”), and § 44106(e)(1) would serve no purpose. We avoid constructions that render a statutory provision- superfluous. Hart v. McLucas, 535 F.2d 516, 519 (9th Cir. 1976).

Even if the státute’s meaning were not clear on its face, the NTSB reasoned, and we agree; that the legislative history leaves no doubt that Congress intended to give the FAA authority to revoke a registration certificate even in situations where a criminal conviction is not possible. Congress enacted this provision as part of the Aviation Drug-Trafficking Control Act, Pub. L. No. 98-499, § 4(a), 98 Stat. 2312 (1984). The conference report explains that the FAA can “proceed against individuals who have engaged in activities which are prohibited by state or federal drug laws, but who have not been convicted of a drag law offense,” such as when “an airman is not convicted because of technicalities which apply to criminal proceedings but not to administrative proceedings involving loss of a license.” H.R. Rep. No. 98-1085, at 9 (1984), reprinted in 1984 U.S.C.C.A.N. 3920, 3992. The report continues:

It should be clearly understood that the reference to existing criminal law applies only to the elements of the violation. We do not intend to require [the] FAA or NTSB to follow criminal law procedures or standards of proof. These matters will be determined by general principles of administrative law applicable to license [and registration] revocation cases.

Id,

IV.

Whether the suppression of the evidence against Connors precluded his conviction is irrelevant. He knowingly allowed his plane to be used to transport marijuana, an “activity” that was punishable by imprisonment for more than one year. The FAA properly revoked his registration certificate.

PETITION FOR REVIEW DENIED.

      . Connors also argued to the NTSB that his act was not punishable because the criminal charge was dismissed with prejudice. The NTSB rejected that argument, and he does not appeal the decision on that ground. •

      . When the FAA revoked Connors’s certificate, distribution or possession with intent to distribute marijuana was punishable under New Mexico law by imprisonment for 18 months or more. See N.M. Stat. Ann. §§ 30-31—22(A)(1), 31—18—15(A),

      . This statement addressed a similar provision with the same language authorizing the FAA, to revoke an airman certificate—a type of license—for felonious drug-related activity. See 49 U.S.C. § 44710(b)(2) (“The [FAA] shall issue an order revoking an airman certificate ... if [it] finds that—(A) the individual knowingly carried out an activity punishable, under a [felony] law ... related to a controlled substance ... ; (B) an aircraft was used to carry out or facilitate the activity; and (C) the individual served as an airman, or was' on the aircraft, in connection with carrying out, or facilitating the carrying out of, the. activity.”). The conference report notes that "[t]he procedures to be followed” in both provisions "are similar.” H.R. Rep. No. 98-1085, at 12. An "airman” is a "pilot, mechanic, or member of the crew” who “command[s]” or "navigates aircraft when under way” or a person "who is directly in charge of inspecting, maintaining, overhauling, or repairing aircraft, aircraft engines, propellers, - or appliances” or "who serves as an aircraft dispatcher or air traffic control-tower operator.” 49 U.S.C. § 40102(a)(8).


author: IKUTA, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Genaro ACEVEDO-DE LA CRUZ, Defendant-Appellant.
    No. 15-10418
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted October 21, 2016 San Francisco, California
    Filed January 5, 2017

      Henry Jacobs (argued), Law Offices of Henry Jacobs PLLC, Tucson, Arizona, for Defendant-Appellant.
    Lauren LaBuff (argued), Assistant United States Attorney; Robert L. Miskell, Appellate Chief; John S. Leonardo, United States Attorney; United States Attorney’s Office, Tucson, Arizona; for Plaintiff-Ap-pellee.
    Before: CARLOS T. BEA and SANDRA S. IKUTA, Circuit Judges, and JANE A. RESTANI, Judge.

       The Honorable Jane A. Restani, Judge for the U.S. Court of International Trade, sitting by designation.

   OPINION

IKUTA, Circuit Judge:

This appeal raises the question whether a violation of a protective order involving an act of violence or credible threat of violence in violation of section 273.6(d) of the California Penal Code is a categorical crime of violence for purposes of § 2L1.2(b)(1)(A)(ii) of the United States Sentencing Guidelines (“U.S.S.G.” or “Sentencing Guidelines”). We review de novo the district court’s determination that Genaro Acevedo-De La Cruz’s prior conviction constitutes a crime of violence, United States v. Mendoza-Padilla, 833 F.3d 1156, 1158 (9th Cir. 2016), and we affirm.

I

We first set forth the legal framework applicable to this appeal. The federal Sentencing Guidelines impose a base offense level of 8 for defendants convicted of unlawful reentry in violation of 8 U.S.C. § 1326. See U.S.S.G. § 2L1.2(a). If the defendant had a prior felony conviction for “a crime of violence,” the Sentencing Guidelines in effect at the time of Acevedo-De La Cruz’s sentencing provided for a 16-level sentence enhancement. Id. § 2L1.2(b)(l)(A)(ii). A “crime of violence” is defined to include any “offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.” Id. § 2L1.2, cmt. n.l(B)(iii). “Physical force” for purposes of the Sentencing Guidelines means “force capable of causing physical pain or injury to another person.” United States v. Flores-Cordero, 723 F.3d 1085, 1087 (9th Cir. 2013) (quoting Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010)). To determine whether a prior conviction qualifies as a crime of violence, we use the categorical approach set forth in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). We first identify the elements of the statute of conviction, and then compare those elements to the generic federal definition of a crime of violence to determine whether the statute of conviction criminalizes more conduct than the generic federal crime. Almanza-Arenas v. Lynch, 815 F.3d 469, 475 (9th Cir. 2016) (en banc). If the statute of conviction criminalizes the same (or less) conduct as does the generic federal crime, then the sentence enhancement applies to every conviction under the statute of conviction. Id.

When interpreting a state statute of conviction, we look to the state’s rules of statutory construction. Id. “Under California law, the cardinal rule of statutory construction is to determine the intent of the legislature.” Id. (quoting Lieberman v. Hawkins (In re Lieberman), 245 F.3d 1090, 1092 (9th Cir. 2001)). To ascertain the intent of the legislature, we look first to the plain language of the statute. Id. ‘We give the language its usual and ordinary meaning, and *[i]f there is no ambiguity, then we presume the lawmakers meant what they said.’ ” People v. Gutierrez, 58 Cal.4th 1354, 1369, 171 Cal.Rptr.3d 421, 324 P.3d 245 (2014) (alterations in original) (quoting Mays v. City of Los Angeles, 43 Cal.4th 313, 321, 74 Cal.Rptr.3d 891, 180 P.3d 935 (2008)). “When attempting to ascertain the ordinary, usual meaning of a word, courts appropriately refer to the dictionary definition of that word.” Wasatch Prop. Mgmt. v. Degrate, 35 Cal.4th 1111, 1121-22, 29 Cal.Rptr.3d 262, 112 P.3d 647 (2005).

The conclusion that a state statute criminalizes more conduct than is included in the generic federal definition of a crime of violence “requires more than the application of legal imagination to a state statute’s language.” Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007). Rather, “[i]t requires a realistic probability, not a theoretical 'possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.” Id. To. show that realistic probability, the defendant “must at least point to his own case or other cases in which the state courts in fact did apply the statute in the spécial (nongeneric) manner for which he argues.” Id.

The state statute of conviction at issue here is section 273.6(d), of, the- California Penal Code, which criminalizes a violation of a protective order “involving an act of violence or ‘a credible threat’ of violence.” “A credible threat” of violence is defined as “a threat madé with the intent and the apparent ability to carry out the threat so as to cause the target of the threat to reasonably fear for his or her safety or the safety of his or her immediate family.” Cal. Penal Code § 139(c).

II

We now turn to the facts of this case. On April 23, 2015, Acevedo-De La Cruz pleaded guilty to one count of illegal reentry following deportation in violation of 8 U.S.C, § 1326(a). At sentencing, the district court considered the effect of Acevedo-De La Cruz’s previous felony conviction under section 273.6(d) of the California Penal Code for a violation of a protective order involving an act of violence or a credible threat of violence. The district court concluded that this prior conviction was a categorical crime of violence warranting a 16-level sentence enhancement under § 2L1.2(b)(l)(A)(ii) of the Sentencing Guidelines. Accordingly, the district court sentenced Acévedó-De La Cruz to 46 months imprisonment.

' III

On appeal, Acevedo-De La Cruz claims that his conviction under section 273.6(d) of the California Penal Code is not a categorical crime of violence for purposes of § 2L1.2(b)(l)(A)(ii) of the Sentencing Guidelines. He reasons that one element of section 273.6(d) refers only to “a credible threat of violence” while § 2L1.2(b)(l)(A)(ii) refers to a threat of “physical force,” and argues that “violence” criminalizes more conduct than “physical force.” In making this argument, Acevedo-De La Cruz relies on the third definition of “violence” in the Merriam-Webster Online Dictionary, which defines “violence” as including “vehement feeling or expression: fervor.” In light of this definition, he contends, section 273.6(d) could criminalize a credible threat of violence without the threatened • use of physical force.

No California court has yet construed the word “violence” for purposes of section 273.6(d), so we begin with the plain text of the statute. Almanza-Arenas, 815 F.3d at 475. The primary definition of “violence” in the dictionary requires physical force. Black’s Law Dictionary defines “violence” as “[t]he use of physical force, [usually] accompanied by fury, vehemence, or outrage; [especially] physical force unlawfully exercised with the intent to harm.” Black’s Law Dictionary (10th ed. 2014) (emphasis added). The Oxford English Dictionary similarly defines “violence” as “[t]he deliberate exercise of physical force against a person, property, etc.; physically violent behaviour or treatment;” and “the unlawful exercise of physical force, intimidation by the exhibition of such force.” Oxford English Dictionary (3d ed. 2014) (emphasis added).

When interpreting other state statutes, California courts have adopted this common understanding of the word “violence” in concluding that force can occur without violence, but violence cannot occur without force. See People v. Babich, 14 Cal.App.4th 801, 807 & n.2, 18 Cal.Rptr.2d 60 (1993) (holding that “violence” under the California false imprisonment statute means “the exercise of physical force used to restrain over and above the force reasonably necessary to effect such restraint,” and noting that such a conclusion is “consistent with applicable dictionary definitions, which suggest violence always includes force, but force may or may not include violence” (emphasis added)); see also People v. Newman, 238 Cal.App.4th 103, 108, 188 Cal. Rptr.3d 910 (2015); People v. Dominguez, 180 Cal.App.4th 1351, 1357, 103 Cal. Rptr.3d 864 (2010). We see no basis for departing from this commonsense interpretation of “violence” for purposes of section 273.6(d). See Wasatch Prop. Mgmt., 35 Cal.4th at 1122, 29 Cal.Rptr.3d 262, 112 P.3d 647 (“The court will apply common sense to the language at hand and interpret the statute to make it workable and reasonable.”). The usual and ordinary definition of “violence” includes physical force. See Gutierrez, 58 Cal.4th at 1369, 171 Cal. Rptr.3d 421, 324 P.3d 245.

.While Acevedo-De La Cruz correctly notes that dictionaries have provided other definitions of “violence,” including the expression of vehement, feelings, he fails to point us to any “cases in which the state courts in fact did apply [section 273.6(d) ] in the special (nongeneric) manner for which he argues.” Duenas-Alvarez, 549 U.S. at 193, 127 S.Ct. 815. Nor has he otherwise demonstrated that there is “a realistic probability, not a theoretical possibility” that California would deem the term “violence” to include rhetorical vehemence, without more, for purposes of a violation of section 273.6(d). Id. Therefore, Acevedo-De La Cruz’s contention that the California legislature intended “violence” under section 273.6(d) to mean the expression of vehement feeling without physical force relies on “legal imagination.’.’ Id. We conclude that “a credible threat of violence” under section 273.6(d) does not criminalize more conduct than the threatened use of physical force for purposes of § 2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines.

We therefore hold that a conviction under section 273.6(d) of the California Penal Code is a categorical crime of violence for purposes of § 2L1.2(b)(l)(A)(ii) of the Sentencing Guidelines. The district court did not err in adding a 16-level enhancement to Acevedo-De La Cruz’s sentence.

AFFIRMED.

      . All citations to the United States Sentencing Guidelines are to the 2014 manual, which applied at the time of Acevedo-De La Cruz’s sentencing. See Johnson v. Gomez, 92 F.3d 964, 968 (9th Cir. 1996). Amendments to the Sentencing Guidelines effective November 1, 2016, eliminated the relevant language in U.S.S.G. § 2L1.2(b)(1)(A)(ii). U.S. Sentencing Guidelines Manual app. C, amend. 802, at 147-49 (U.S, Sentencing Comm’n 2016).

      . U.S.S.G. § 2L1.2, "Unlawfully Entering or Remaining in the United States” provided, in pertinent part:
      (a) Base Offense Level: 8
      (b) Specific Offense Characteristic (1) Apply the Greatest:
      If the defendant previously was deported, or unlawfully remained in the United States, after—
      (A) a conviction for a felony that is ... (ii) a crime of violence ... increase by 16 levels if the conviction receives criminal history points under Chapter Four or by 12 levels if the conviction does not receive criminal history points.

      .Application Note l(B)(iii) to § 2L1.2 provided:
      "Crime of violence” means any of the following offenses under federal, state, or local law: murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses (including where consent to . the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced), statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any other offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.

      . If the statute of conviction criminalizes more conduct than the generic federal crime, we consider whether the statute is divisible; if it is divisible, then we apply the modified categorical approach. Descamps v. United States, — U.S. —, 133 S.Ct. 2276, 2284, 186 L.Ed.2d 438-(2013), Here, we do not need to apply the modified categorical approach because we conclude that a conviction under section 273.6(d) of the California Penal Code is categorically a crime of violence,

      . Cal. Penal Code § 273.6(d) provides:
      A subsequent conviction for [an “intentional and knowing violation” of certain protective orders described in section 273.6(a)], occurring within seven years of a prior conviction for a violation of an order described in subdivision (a) and involving an act of violence or “a credible threat” of violence, as defined in subdivision (c) of Section 139, is punishable by imprisonment in a county jail not to exceed one year, or pursuant to subdivision (h) of Section 1170.

      . Acevedo-De La Cruz's October 27, 2016, motion is granted.