US Supreme Court Considers Whether Classes with Uninjured Members Can Be Certified

The US Supreme Court held oral arguments in Laboratory Corporation of America Holdings d/b/a Labcorp v. Davis, et al. to consider the issue of whether a federal court can certify a class when some of the members of the proposed class lack Article III injury.

The Supreme Court’s decision could settle a three-way circuit split [1] on the issue of whether, or to what extent, the presence of uninjured class members can defeat class certification.

During the oral argument, however, the justices spent time probing whether Labcorp presented the proper procedural posture to address this issue. The justices’ questioning also focused on the difficulties that district courts could face addressing Article III standing before a class has been certified, signaling that the Court may not reach a hardline decision requiring all class members to show Article III injury in order to obtain class certification.

We expect a decision by the end of the Court’s term in June and will provide an analysis of that decision.

BACKGROUND

In Labcorp, a putative class of visually impaired individuals brought a class action asserting claims under the Americans with Disabilities Act (ADA) and California’s Unruh Act against LabCorp in connection with the company’s check-in kiosks. The named plaintiffs—two legally blind individuals and the American Council for the Blind—allege that the interactive, self-service check-in kiosks available at LabCorp facilities in California are not accessible to people with visual impairments and therefore violate the ADA.

Labcorp, in opposing class certification, argued that the plaintiffs could not show Article III standing for many of the Rule 23(b)(3) putative class members—defined by the plaintiffs to include all legally blind individuals who visited a Labcorp patient service center with a kiosk in California and were unable to use the kiosk due to their disability. The proposed class, as defined, contained class members who were merely exposed to a kiosk and therefore did not experience any Article III injury, according to Labcorp.

To establish Article III injury, Labcorp argued, the plaintiffs would need to demonstrate something more than mere exposure by each class member to a Labcorp kiosk. Accordingly, since the court would be required to separate class members who had suffered an injury from those who had not, individualized questions into standing would overwhelm any common questions of law and fact, thus destroying predominance required by Rule 23(b)(3) for class certification of a damages class. While the named plaintiffs had attempted to use the kiosks, thousands of unnamed putative class members had not.

The plaintiffs argued before the trial court that the issue of whether common questions of law and fact predominate over questions affecting only individual members should be determined on a case-by-case basis. According to the plaintiffs, where a class may contain uninjured members, “predominance turns on whether there is an administratively feasible way to identify them before they receive relief.” [2]

The US District Court for the Central District of California certified the damages class under 23(b)(3), concluding that a district court is not precluded from certifying a class “even if plaintiffs may have to prove individualized damages at trial.” [3], [4] The trial court reasoned that it could address individual damages issues by bifurcating the case into liability and damages phases, and by creating a process to validate individual damages claims after a liability determination. [5]

The US Court of Appeals for the Ninth Circuit affirmed class certification, concluding that, under Ninth Circuit law, Rule 23 allows “certification of a class that potentially includes more than a de minimis number of uninjured class members.” [6]

On January 24, 2025, the Supreme Court agreed to consider the question presented by LabCorp’s certiorari petition: whether a federal court may certify a class action pursuant to Federal Rule of Civil Procedure 23(b)(3) when some members of the proposed class lack any Article III injury.

SUPREME COURT ORAL ARGUMENT

During the April 29, 2025 oral argument which lasted over two hours, the justices actively questioned counsel for Labcorp and the class, as well as amicus curiae counsel from the Office of the Solicitor General. The questioning focused on a threshold procedural issue that first arose after certiorari was granted, as well as the substantive issues surrounding Article III standing and certification pursuant to Rule 23(b)(3).

On the substantive issues, counsel for Labcorp argued that, if an individual does not have standing to bring her own claim, she cannot bring a claim by way of a class action. From a legal and practical perspective, Labcorp argued, courts must address jurisdictional standing before reaching the merits of a case. Labcorp argued that the certified class included both those who wanted and attempted to use the kiosks and those who did not and had no interest in doing so (because they would check in at the center’s front desk not the kiosk). According to Labcorp, counsel for the class could redefine the class to narrow it to people who wanted to use the kiosks to check in at the patient service center, but this would walk them directly into 23(b)(3) predominance issues, resulting in many mini-trials to establish proof of injury.

During Labcorp’s presentation, the justices focused on the difficulty in certain cases of determining whether class members are in fact injured. Questioning from the justices revealed an overall skepticism around requiring that Article III standing for all class members be determined before class certification. Justices Sonia Sotomayor, Elena Kagan, Neil Gorsuch, and Ketanji Brown Jackson urged that class definitions can be fluid and amended over the course of an action, and they offered that the injured and uninjured could be sorted out after certification but before damages are awarded and judgment is entered. Justices Kagan and Jackson suggested that there is no reason to diverge from how Rule 23(b)(3) has been applied previously since the rule does not mandate commonality with respect to injury.

Counsel for the class argued that the proper inquiry at the class certification stage is whether there would be any administratively feasible mechanism to weed out uninjured class members following certification and that only the named plaintiff is required to satisfy Article III standing. As long as a mechanism exists to extract uninjured members from the class at some point during the litigation, that exercise need not occur prior to certification. Justices Sotomayor, Kagan, Gorsuch, and Jackson made comments suggesting agreement with these propositions.

Class counsel also argued that the present class did not include any uninjured members because all the class members suffered the discriminatory effect of being unable to use the kiosks. Counsel for the class further reasoned that if a class with uninjured members were certified, a judgment in favor of the defendant would not be binding on those uninjured members, since the court would have no standing as to their claims.

Amicus curiae from the Office of the Solicitor General argued that the Court shouldn’t wait to determine Article III standing until “it comes time to dole out the actual relief.” Amicus argued that the class must be defined in such a way that it does not include uninjured members, as Rule 23 requires all class members to share the same injury—including Article III injury—for a class to be certified.

In highlighting a procedural issue that could derail a substantive decision from the Court, several of the justices focused on the fact that Labcorp had appealed from a May order they deemed “inoperative” in light of a subsequent, superseding order entered three months later. Labcorp responded that the latter order did not change the May order in any material way (as confirmed by the district court and Ninth Circuit), but class counsel argued the latter order superseded the May order and changed the class definition in a material and meaningful way.

PRACTICAL IMPLICATIONS OF SUPREME COURT DECISION

Given the three-way circuit split, a substantive decision by the Supreme Court in LabCorp could significantly impact the class certification analysis in instances where some of the members of the proposed class lack Article III injury. The Court could rule in line with one of the three current standards, or it could avoid a definitive ruling on the issue and leave the law unsettled. If the Supreme Court issues a substantive ruling, it could create nationwide uniformity and reduce forum shopping for class certification.

A ruling that affirms the Ninth Circuit would create a more lenient uniform standard for certifying a class and could lead the plaintiffs’ counsel to bring class actions for larger classes with less definite injuries. This, in turn, may lead to the certification of more classes and increase the settlement pressure on companies given increased exposure.

A Supreme Court ruling that requires all class members to have suffered injury for the class to be certified would have the opposite effect. Class membership would be more limited and damage calculations could more closely reflect actual injuries. Plaintiffs would be required to conduct a more in-depth analysis of purported class members’ potential injury before the certification stage, potentially increasing the costs associated with bringing a class action. Such a rule also may lead to the filing of more state-specific classes in state courts where Article III standing requirements may be more relaxed.

Whether a certified class includes uninjured class members also could have a significant impact on class settlements. A ruling that continues to allow uninjured class members at the class certification stage has the potential to inflate settlement values and increase exposure. It also may lead to greater scrutiny of class settlements by courts during the approval process.

The Supreme Court’s ruling could have a particular impact on antitrust class actions. In such cases, plaintiffs often rely on economic models of a but-for world to determine damages. Due to the nature of counterfactuals, those models often leave questions regarding which potential class members have suffered Article III injury. Confirmation from the Court that a model offered in support of class certification to establish common proof of injury must demonstrate that members of the proposed class have Article III standing would resolve what has been a recurring debate in antitrust cases.

Whether the Court takes this opportunity to resolve that debate will have to await the Court’s decision, which is expected before the end of the Supreme Court’s term in June of this year.