Supreme Court Hears Argument About Uninjured Class Members

On April 29, 2025, the Supreme Court heard oral argument in Laboratory Corporation of America Holdings, dba Labcorp, v. Luke Davis, et al., No. 22-55873. The Supreme Court had granted a petition for writ of certiorari in the case as to the following question: “[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.” The Justices focused much of the oral argument on whether the case was moot, suggesting they may not reach the merits. And when soliciting argument on the merits, the Court appeared divided as to how to answer the question.

Background

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 included patients who, according to Labcorp, never tried to or never wanted to use the express kiosks. The district court certified the classes, concluding (among other things) that at least under Rule 23, whether class members suffered an injury does not bar certification.^[1] On appeal, the Ninth Circuit agreed, ruling that the problem of potentially uninjured unnamed class members did not preclude class certification.^[2]

Mootness

During merits briefing, and by letter in the days leading up to argument, counsel for class plaintiffs argued that jurisdictional “developments” could bar the Court’s review of the petition.^[3] They argued that petitioners’ notice of appeal had challenged only the class definitions in the district court’s May order, which was later superseded by an August order which worded the class definitions differently. Class counsel says this renders the petition moot because interlocutory appeals from superseded orders are moot.

At argument, Justice Sotomayor noted that the Ninth Circuit, in deciding the issue, had flagged that petitioners had not included the August order in their notice of appeal. She suggested that the question presented could thus result in an impermissible advisory opinion.

Petitioners responded that the district court described the May and August orders as “identical” and that the Ninth Circuit resolved the question presented by the May order, so the Supreme Court may reach the merits. Petitioners added that Ninth Circuit procedural rules would have prevented them from appealing the August order because it did not materially alter the May order. Justice Kavanaugh appeared open to the point given the district court’s characterization of its own order. Justice Alito questioned whether the Ninth Circuit’s procedural rules were the source of the procedural problems presented by the petition.

The Merits

Turning to the case merits, some Justices appeared skeptical on the non-injury point. Justice Gorsuch noted that defense counsel often prefer broad class definitions to ensure “peace” for their clients. Without such broad definitions, Justice Gorsuch cautioned litigation could devolve into “mass tort claims.” Justice Jackson raised that, typically, class plaintiffs only need demonstrate that one named plaintiff has standing to proceed. Justice Sotomayor echoed Justice Jackson, explaining that courts protect defendants’ rights by ensuring uninjured class members are not paid at the damages phase. Justice Sotomayor noted her understanding that absent class members do not become parties to the litigation until judgment is entered, not at class certification.

Recalling his short concurrence in Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442 (2016), which Justice Alito joined, Chief Justice Roberts reiterated his instinct that if a class includes uninjured members, the proper course was to refuse to certify the class in the first place. Responding to class counsel’s suggestion that the issue of uninjured class members could be addressed at trial, Chief Justice Roberts countered that “the elephant in the room” is that once a class is certified, “the possibility of facing the damages that are at issue” dissuades defendants from going to trial.

Takeaways for Clients

The Supreme Court may choose the procedural way out, in which case the federal circuit split on the inclusion of uninjured class members in Rule 23(b)(3) classes persists. If the Supreme Court reaches the merits, the outcome is far from clear and, judging from the argument, any decision will likely be divided.

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.