ALF Argues That Class Actions Must Not Include Uninjured Class Members
Supreme Court precedents establish that to have constitutional standing to sue, a litigant must establish, among other things, that he or she has suffered an “injury in fact.” Although this Article III “case or controversy” requirement applies to class actions, federal courts of appeals disagree about whether the named plaintiffs in a putative class action must demonstrate that every absent member of a proposed class has been injured, or whether a class can be certified even it includes a minimal number of uninjured members. The Supreme Court has granted certioari in Labcorp v. Davis (24-304) to address this crucial and long-percolating class-action issue.
ALF has filed an amicus brief arguing that a federal district court must not certify a class if it includes any uninjured members, or alternatively, that a class must not include more than a de minimis number of uninjured members. The brief was authored pro bono by Felix Shafir and John F. Querio of Horvitz & Levy LLP.
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.
Additional Background:
The named plaintiffs in the Labcorp case seek to certify a nationwide class, and California subclass, of legally blind individuals who were “exposed” to (i.e., who were merely physically proximate to) automated check-in kiosks that they were unable to use at Labcorp diagnostic testing centers. The plaintiffs claim that this “exposure” to self-service check-in kiosks that allegedly were non-compliant with the Americans with Disabilities Act entitle them to money damages.
But according to Labcorp, undisputed record evidence indicates that a multitude of blind patients either do not know these kiosks exist, or if they do, have no interest in using them, preferring instead to use the front-desk human-staffed, check-in option that has served them well for years. Thus, despite these individuals’ “exposure” to nearby check-in kiosks, they have suffered no injury. Nonetheless, a California federal district court certified the entire class, potentially consisting of hundreds of thousands of individuals througout the United States, and the Ninth Circuit affirmed.
ALF’s Amicus Brief:
ALF’s amicus brief argues that Article III prohibits federal district courts from certifying class actions unless and until the named plaintiffs present common evidence, at the class-certification stage, that each and every absent member suffered some concrete harm. More specifically, (i) Article III requires that each and every class member have standing at the class-certification stage; (ii) absent class members cannot rely on the standing of the named plaintiffs; (iii) Federal Rule of Civil Procedure 23, which governs class actions, cannot be interpreted or applied in a way that circumvents the Article III standing requirement; and (iv) the burden is on the named plaintiffs to demonstrate, at the class-certification stage, that each and every member of the proposed class has been injured.
The amicus brief argues in the alternative that a federal district court must not certify a class that contains more than a de minimis number of absent uninjured members. Further, this de minimis standard can be satisfied only where a tiny fraction of the class (certainly less than 1% in any case with a few hundred members or more) consists of uninjured members. The brief explains that to satisfy a de minimis standard, the named plaintiffs would have to present a case-specific, administratively feasible mechanism for sifting out uninjured members—a method that must preserve a defendant’s constitutional right to present individualized challenges to class members’ standing.
Status:
The Supreme Court has scheduled oral argument for April 29, 2025.
Contact:
Email ALF Executive Vice President & General Counsel Lawrence Ebner.
