On January 24, 2025, the US Supreme Court granted certiorari in Laboratory Corporation of America Holdings v. Davis, 24-304 to decide “[w]hether 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.” Currently, whether class certification with uninjured class members is permissible—and to what extent uninjured class members are permitted—largely depends on the federal circuit jurisdiction in which the case is pending.
The federal circuit courts hold significantly different positions as to the extent putative class members must demonstrate Article III standing. Some circuits have applied a strict approach, requiring that all members of a class have standing. Notably, the Second Circuit’s position is that “no class may be certified that contains members lacking Article III standing,” and the Eighth Circuit similarly requires that all class members have standing.i Other circuits have adopted standards that fall somewhere in the middle. For example, the Seventh Circuit certifies classes unless a “great many” of the class members lack standing,ii while the First and DC Circuits allow class certification if there are a de minimis number of members that do not have standing.iii
Because of the widely varying standards, the Supreme Court granted certiorari in Labcorp v. Davis. In that case, the plaintiffs filed a lawsuit alleging Labcorp violated their civil rights because its express check-in self-serve kiosks were not accessible to the blind. As part of their suit, the plaintiffs sought to certify a class that included all legally blind individuals who visited a Labcorp facility and were denied full and equal enjoyment of the goods, services, and facilities available due to Labcorp’s failure to make its kiosks accessible to the blind.
Labcorp challenged the proposed class definition, arguing that many members of the putative class had not sustained an Article III injury. Although the named plaintiffs inquired about the kiosks and were later assisted by employees because they could not use them, many of the class members were not aware of the kiosks and used the front desk. Despite Labcorp’s objections, the court certified the proposed class because all members encountered allegedly inaccessible kiosks at Labcorp’s facilities. Thus, the relevant inquiry was whether class members were subject to the same injuring behavior, not the same injury. In other words, it is enough in the Ninth Circuit that only named plaintiffs have Article III standing or injury to certify a class.
The court expects the briefs in Labcorp v. Davis to be filed by April 21, 2025. It is likely that the court will not publish its decision until 2026. Attorneys at Barclay Damon will continue to monitor for any further updates and guidance from the Supreme Court on this issue.
If you have any questions regarding the content of this alert, please contact Yvonne Hennessey, Environmental Practice Area chair, at yhennessey@barclaydamon.com; Carol Snider, Mass & Toxic Torts Practice Area co-chair, at csnider@barclaydamon.com; Andrew Carroll, counsel, at acarroll@barclaydamon.com; or another member of the firm’s Mass & Toxic Torts and Torts & Products Liability Defense Practice Areas.
iDenney v. Deutsche Bank AG, 443 F.3d 253 (2d Cir. 2006); see also Oetting v. Norton, 795 F.3d 886 (8th Cir. 2015).
iiKohen v. Pac. Inv. Mgmt. Co., 571 F.3d 672, 677 (7th Cir. 2009).
iiiAstrazeneca AB v. UFCW (In re Nexium Antitrust Litig.), 777 F.3d 9 (1st Cir. 2015); see also In re Rail Freight Fuel Surcharge Antitrust Litig., 292 F. Supp. 3d 14, 135 (D.D.C. 2017).