Supreme Court To Address Whether Courts May Certify Rule 23(b)(3) Classes With Uninjured Class Members

On January 24, 2025, the United States Supreme Court agreed to hear a case that could resolve whether putative Rule 23(b)(3) classes may be certified in the federal courts when some of the class members are uninjured. Or, as the Supreme Court put the certified question in the case, Laboratory Corporation of America Holdings, dba Labcorp, v. Luke Davis, et al., No. 22-55873:

“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.”[1]

The issue has dogged the Circuits for years, with mixed outcomes. The high court’s resolution could send ripples across class action practice nationwide, potentially reducing class action forum-shopping and making it more difficult—or easier—to certify a broad Rule 23(b)(3) class seeking damages.

Labcorp’s Petition

Labcorp is a clinical diagnostic laboratory that tests samples collected from patients at its patient service centers. In January 2020, a putative class of legally blind plaintiffs sued Labcorp asserting violations of the Americans with Disabilities Act, the Rehabilitation Act, the Patient Protection and Affordable Care Act, and California’s Unruh Act. For each claim, plaintiffs asserted that Labcorp discriminated against them because they could not use Labcorp’s express check-in kiosks at its patient service centers.

When defining the proposed classes, plaintiffs swept broadly, including patients who, according to Labcorp, never tried to use the express kiosks:

The Nationwide Class: All legally blind individuals who visited a LabCorp patient service center with a LabCorp Express Self-Service kiosk in the United States during the applicable limitations period, and who, due to their disability, were unable to use the LabCorp Express Self-Service kiosk.

The California Subclass: All legally blind individuals who visited a LabCorp patient service center with a LabCorp Express Self-Service kiosk in California during the applicable limitations period, and who, due to their disability, were unable to use the LabCorp Express Self-Service kiosk.[2]

The district court certified the classes, concluding (among other things) that whether or not class members suffered an injury does not bar certification and can be resolved later.[3]

On appeal, plaintiffs acknowledged that their classes included members who were only “exposed” to an express check-in kiosk at a Labcorp patient center, which, according to Labcorp, means they were not necessarily injured because they did not try to use the kiosk, and would prefer to use the front desk even if they could use the kiosks.[4] The Ninth Circuit affirmed the district court’s certification of both classes.[5] It explained that all class members had suffered harm within the meaning of Article III of the U.S. Constitution because the kiosks denied the plaintiffs “full and equal enjoyment” of Labcorp’s patient service centers.[6] The Ninth Circuit opined that the problem of potentially uninjured unnamed class members did not preclude class certification and could be addressed later.[7]

The Circuit Split

Article III of the U.S. Constitution requires any plaintiff to have suffered injury before they may sue in federal court. And Rule 23(b)(3) of the Federal Rules of Civil Procedure conditions certification of a class seeking damages on a court finding that common issues, not individual ones, will predominate.

For years, whether certified Rule 23(b)(3) classes may include uninjured members consistent with both requirements has divided the Courts of Appeals. The Circuits fall generally into three camps: (1) courts that reject, under Article III, classes that include uninjured members; (2) courts that reject, under Rule 23(b)(3)’s predominance requirement, classes that include uninjured members because such classes require individualized injury inquiries; and (3) courts that find the no-injury consideration no barrier to class certification and leave the question for later resolution. The Ninth Circuit, in the decision at issue, followed previous circuit authority and placed itself firmly in the last camp.[8] The Supreme Court’s grant of Labcorp’s petition could resolve this three-way split, and have wide-ranging ramifications for companies that face class actions by making it either easier or harder, across the federal courts, to certify a broad damages class absent a showing of injury for all members.

Takeaways for Clients

The Supreme Court’s decision could remake class certification practice for both those seeking, and seeking to prevent, Rule 23(b)(3) class treatment.

Should the Supreme Court side with the Ninth Circuit and find no Article III or Rule 23(b)(3) impediment to certifying Rule 23(b)(3) classes with uninjured members, parties and attorneys seeking class status benefit. Their odds of getting certified increase. They might inflate their class sizes to include the unharmed to drive up exposure. And they increase their settlement leverage pre- and post-class certification, especially important since most class actions do not proceed to trial. A contrary ruling achieves the opposite as to each of these issues, depending of course on precisely how the Court rules.

The Supreme Court’s resolution of this question could also bring nationwide uniformity and clarity to the authority split, reducing some forum shopping. Then again, a decision that takes up only Article III or only Rule 23 could leave one or the other objection in limbo for the lower courts.

If you have any questions regarding this alert or class actions in general, Crowell’s deep bench of class action defense attorneys are available to discuss and assist.