Amicus Curiae Brief — Laboratory Corporation of America Holdings, dba Labcorp, Petitioner v. Luke Davis, et al.

No. 24-304

In the

Supreme Court of the United States

LABORATORY CORPORATION OF

AMERICA HOLDINGS, DBA LABCORP,

Petitioner,

v.

LUKE DAVIS, et al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF OF ATLANTIC LEGAL FOUNDATION

AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

Lawrence S. Ebner

Counsel of Record

Atlantic Legal Foundation

1701 Pennsylvania Avenue, NW

Washington, DC 20006

(202) 729-6337

lawrence.ebner@

atlanticlegal.org

Felix Shafir

John F. Querio

Horvitz & Levy LLP

3601 West Olive Avenue,

8th Floor

Burbank, CA 91505

(818) 995-0800

fshafir@horvitzlevy.com

Counsel for Amicus Curiae

120275

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .......................................iii

INTEREST OF AMICUS CURIAE ............................. 1

SUMMARY OF ARGUMENT ..................................... 2

ARGUMENT ................................................................ 4

I.

Article III prohibits the certification of

class actions that include any uninjured

class members. .................................................. 4

A.

Article III requires that each class

member have standing at the

class-certification stage. ......................... 4

B.

Absent class members cannot

circumvent Article III at the classcertification stage by relying on

the standing of named plaintiffs. .......... 7

C.

Class certification rules do not

permit federal courts to evade

Article III’s strictures........................... 11

D.

Article

III

requires

named

plaintiffs to present evidence

showing

each

absent

class

member has been injured. ................... 18

ii

II.

Alternatively, federal courts cannot

certify a class that includes more than a

de minimis number of uninjured

members. ......................................................... 26

A.

Due

to

constitutional

and

statutory

constraints,

Rule

23(b)(3) forbids class certification

where the number of uninjured

class members is more than de

minimis. ................................................ 26

B.

Named plaintiffs must comply

with stringent criteria before they

can

demonstrate

class

certification is warranted under

this de minimis standard. .................... 31

CONCLUSION .......................................................... 34

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Amchem Prods., Inc. v. Windsor,

521 U.S. 591 (1997) .............................................. 13

Ariz. Christian Sch. Tuition Org. v.

Winn,

563 U.S. 125 (2011) .............................................. 18

Avritt v. Reliastar Life Ins. Co.,

615 F.3d 1023 (8th Cir. 2010) ............................ 5, 6

Bennett v. Spear,

520 U.S. 154 (1997) .............................................. 24

Bowman Dairy Co. v. United States,

341 U.S. 214 (1951) .............................................. 27

Byrd v. United States,

584 U.S. 395 (2018) .............................................. 21

Cibolo Waste, Inc. v. City of San

Antonio,

718 F.3d 469 (5th Cir. 2013) .................................. 7

Clapper v. Amnesty Int’l USA,

568 U.S. 398 (2013) ................................................ 4

Clinton v. City of New York,

524 U.S. 417 (1998) ................................................ 8

iv

Cooper v. Fed. Rsrv. Bank of Richmond,

467 U.S. 867 (1984) .............................................. 15

Cordoba v. DirecTV, LLC,

942 F.3d 1259 (11th Cir. 2019) ............................ 31

Daubert v. Merrell Dow Pharm., Inc.,

509 U.S. 579 (1993) .............................................. 22

Deposit Guar. Nat’l Bank v. Roper,

445 U.S. 326 (1980) .............................................. 13

Devlin v. Scardelletti,

536 U.S. 1 (2002) .............................................. 6, 10

DG ex rel. Stricklin v. Devaughn,

594 F.3d 1188 (10th Cir. 2010) ............................ 12

Eisen v. Carlisle & Jacquelin,

417 U.S. 156 (1974) .............................................. 32

FDA v. All. for Hippocratic Med.,

602 U.S. 367 (2024) ........................................ 13, 19

FEC v. Cruz,

596 U.S. 289 (2022) .............................................. 21

Flecha v. Medicredit, Inc.,

946 F.3d 762 (5th Cir. 2020) ................................ 10

Gladstone Realtors v. Village of

Bellwood,

441 U.S. 91 (1979) .................................................. 8

Groff v. DeJoy,

600 U.S. 447 (2023) .............................................. 33

v

Gwaltney of Smithfield, Ltd. v.

Chesapeake Bay Found., Inc.,

484 U.S. 49 (1987) ................................................ 27

Harnish v. Widener Univ. Sch. of L.,

833 F.3d 298 (3d Cir. 2016).................................. 20

Huber v. Simon’s Agency,

84 F.4th 132 (3d Cir. 2023) ............................ 15, 16

In re Aggrenox Antitrust Litig.,

94 F.Supp.3d 224 (D. Conn. 2015) ....................... 18

In re Aluminum Warehousing Antitrust

Litig.,

336 F.R.D. 5 (S.D.N.Y. 2020) ............................... 23

In re Asacol Antitrust Litig.,

907 F.3d 42 (1st Cir. 2018) ...................... 30, 31, 32

In re EpiPen (Epinephrine Injection

USP) Mktg. Sales Prac. & Antitrust

Litig.,

No. 17-md-2785, 2020 WL 1180550

(D. Kan. Mar. 10, 2020)........................................ 29

In re HIV Antitrust Litig.,

No. 19-cv-02573, 2022 WL 22609107

(N.D. Cal. Sept. 27, 2022) .............................. 32, 33

In re Hydrogen Peroxide Antitrust Litig.,

552 F.3d 305 (3d Cir. 2008).................................. 23

In re Nexium Antitrust Litig.,

777 F.3d 9 (1st Cir. 2015) .................................... 29

vi

In re Prudential Ins. Co. Am. Sales Prac.

Litig. Agent Actions,

148 F.3d 283 (3d Cir. 1998).............................. 3, 12

In re Rail Freight Fuel Surcharge

Antitrust Litig.,

725 F.3d 244 (D.C. Cir. 2013) ............ 20, 22, 23, 28

In re Rail Freight Fuel Surcharge

Antitrust Litig.,

292 F.Supp.3d 14 (D.D.C. 2017) .............. 22, 23, 32

In re Rail Freight Fuel Surcharge

Antitrust Litig.,

934 F.3d 619 (D.C. Cir. 2019) ........................ 30, 33

In re Salomon Smith Barney Mut. Fund

Fees Litig.,

441 F.Supp.2d 579 (S.D.N.Y. 2006) ..................... 15

Kleen Prods. LLC v. Int’l Paper Co.,

831 F.3d 919 (7th Cir. 2016) ................................ 12

Lindsey v. Normet,

405 U.S. 56 (1972) .......................................... 26, 27

Lujan v. Defs. of Wildlife,

504 U.S. 555 (1992) .............................................. 20

Mausolf v. Babbitt,

85 F.3d 1295 (8th Cir. 1996) .................................. 6

Messner v. Northshore Univ.

HealthSystem,

669 F.3d 802 (7th Cir. 2012) ................................ 29

vii

Olean Wholesale Grocery Coop., Inc. v.

Bumble Bee Foods, LLC,

993 F.3d 774 (9th Cir. 2021) .......................... 28, 30

Olean Wholesale Grocery Coop., Inc. v.

Bumble Bee Foods, LLC,

5 F.4th 950 (9th Cir. 2021) .................................. 28

Olean Wholesale Grocery Coop., Inc. v.

Bumble Bee Foods, LLC,

31 F.4th 651 (9th Cir. 2022) .............. 17, 18, 28, 29

Parko v. Shell Oil Co.,

739 F.3d 1083 (7th Cir. 2014) .................. 18, 19, 24

Raines v. Byrd,

521 U.S. 811 (1997) ...................................... 2, 5, 18

Schlesinger v. Reservists Comm. to Stop

the War,

418 U.S. 208 (1974) .......................................... 2, 25

Shady Grove Orthopedic Assocs. v.

Allstate Ins.,

559 U.S. 393 (2010) .............................................. 13

Smith v. Bayer Corp.,

564 U.S. 299 (2011) .............................................. 10

Spokeo, Inc. v. Robins,

578 U.S. 330 (2016) ............................................ 4, 5

Sprint Commc’ns Co. v. APCC Servs.,

Inc.,

554 U.S. 269 (2008) ................................................ 2

viii

Standard Fire Ins. Co. v. Knowles,

568 U.S. 588 (2013) .............................................. 14

Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83 (1998) ............................ 4, 5, 14, 17, 19

Susan B. Anthony List v. Driehaus,

573 U.S. 149 (2014) .......................................... 4, 15

Thornley v. Clearview AI, Inc.,

984 F.3d 1241 (7th Cir. 2021) .............................. 25

Torres v. Mercer Canyons Inc.,

835 F.3d 1125 (9th Cir. 2016) .............................. 12

Town of Chester v. Laroe Estates, Inc.,

581 U.S. 433 (2017) ...................... 7, 8, 9, 10, 11, 14

TransUnion LLC v. Ramirez,

594 U.S. 413 (2021) ..... 2, 5, 6, 9, 10, 21, 25, 27, 31

Tyson Foods, Inc. v. Bouaphakeo,

577 U.S. 442 (2016) .............................................. 22

United States v. Hays,

515 U.S. 737 (1995) .............................................. 27

United States v. Sanchez-Gomez,

584 U.S. 381 (2018) .......................................... 6, 10

Valley Forge Christian Coll. v. Am.

United for Separation of Church and

State, Inc.,

454 U.S. 464 (1982) ...................................... 6, 7, 15

ix

Wal-Mart Stores, Inc. v. Dukes,

564 U.S. 338 (2011) ............ 5, 10, 11, 20, 22, 23, 27

Warth v. Seldin,

422 U.S. 490 (1975) ................................................ 2

Willy v. Coastal Corp.,

503 U.S. 131 (1992) .............................................. 13

Wis. Dept. of Rev. v. Wrigley,

505 U.S. 214 (1992) .............................................. 33

Wittman v. Personhuballah,

578 U.S. 539 (2016) ............................................ 2, 6

Constitutions

U.S. Const., art. III .... 4, 5, 6, 7, 10, 11, 12, 13, 14, 16,

17, 18, 19, 21, 25, 26, 27

U.S. Const., art. III, § 2 ............................................... 2

U.S. Const., amend. VII ...................................... 31, 32

Statutes

28 U.S.C. § 2072(b) .................................................... 13

Clean Air Act,

Pub. L. No. 101–549, 103 Stat. 2574 ................... 27

x

Rules

Federal Rules of Civil Procedure

23 ......... 5, 11, 12, 13, 14, 15, 16, 17, 18, 20, 28, 30

23(b)(3) ..................... 3, 9, 10, 11, 16, 26, 27, 28, 29

23(b)(3)(D)............................................................. 32

Federal Rule of Evidence 702.................................... 22

Miscellaneous

Aaron-Andrew P. Bruhl, One Good

Plaintiff Is Not Enough,

67 Duke L.J. 481 (2017) ......................................... 9

About ALF,

https://atlanticlegal.org/about/ (last

visited Mar. 10, 2025) ............................................ 1

Common, Merriam-Webster’s Collegiate

Dictionary (11th ed. 2007) ................................... 28

Fred Fresard et al., For Proper Risk

Management: Doing Business in the

U.S. and Canada,

55 No. 11 DRI For the Defense 82

(2013) ................................................................... 24

15 James Wm. Moore, Moore’s Federal

Practice

§ 101.23 (3d ed. 2024)............................................. 9

Predominate, Merriam-Webster’s

Collegiate Dictionary (11th ed. 2007) .................. 28

xi

1 William B. Rubenstein, Newberg and

Rubenstein on Class Actions § 2:3

(6th ed. 2022 & Supp. 2024) ................................ 18

1 William B. Rubenstein, Newberg and

Rubenstein on Class Actions § 2:6

(6th ed. 2022 & Supp. 2024) ................................ 14

1

INTEREST OF AMICUS CURIAE1

Established in 1977, Atlantic Legal Foundation

(“ALF”) is a national, nonprofit, nonpartisan, public

interest law firm. ALF’s mission is to advance the rule

of law and civil justice by advocating for individual

liberty, free enterprise, property rights, limited and

responsible government, sound science in judicial and

regulatory proceedings, and effective education,

including parental rights and school choice. With the

benefit of guidance from the distinguished legal

scholars, corporate legal officers, private practitioners,

business executives, and prominent scientists who

serve on its Board of Directors and Advisory Council,

ALF pursues its mission by participating as amicus

curiae in carefully selected appeals before this Court,

federal Courts of Appeals, and state Supreme Courts.

See About ALF, https://atlanticlegal.org/about/ (last

visited Mar. 10, 2025).

ALF has an abiding interest in the application

of sound principles of law to class actions. The

question presented by this case is of exceptional

importance to ALF. Several intermediate federal

appellate courts, like the Ninth Circuit here, allow

district courts to certify broad classes with numerous

absent members who have suffered no injury. By doing

so, these courts contravene the jurisdictional limits

placed on federal courts by the Constitution. ALF has

an interest in ensuring that Petitioner Laboratory

1 No party’s counsel authored this amicus brief in whole or in

part. No one other than Atlantic Legal Foundation or its counsel

contributed money to prepare or submit this brief.

2

Corporation of America Holdings (“Labcorp”), like all

defendants, is subject to class litigation in federal

court only when all members of the putative class have

standing to proceed in the federal forum.

──────────

SUMMARY OF ARGUMENT

“Article III, § 2, of the Constitution restricts the

federal ‘judicial Power’ to the resolution of ‘Cases’ and

‘Controversies.’” Sprint Commc’ns Co. v. APCC Servs.,

Inc., 554 U.S. 269, 273 (2008). This constitutional

restriction, which is “fundamental to the judiciary’s

proper role in our system of government,” Raines v.

Byrd, 521 U.S. 811, 818 (1997), requires litigants

seeking relief in federal courts to demonstrate they

have standing to sue, Wittman v. Personhuballah, 578

U.S. 539, 543 (2016).

To satisfy this standing requirement, litigants

must prove that they have suffered “an ‘injury in fact’”

that is “‘fairly traceable’ to the conduct being

challenged” and is redressable by a favorable judicial

decision. Id. (citation omitted).

Class actions are not exempt from this

limitation. See Warth v. Seldin, 422 U.S. 490, 501

(1975); Schlesinger v. Reservists Comm. to Stop the

War, 418 U.S. 208, 215–16 (1974). “Every class

member must have Article III standing in order to

recover individual damages.” TransUnion LLC v.

Ramirez, 594 U.S. 413, 431 (2021).

3

Despite this constitutional imperative, some

federal courts permit the certification of a damages

class under Federal Rule of Civil Procedure 23(b)(3)

without requiring named plaintiffs to demonstrate

absent class members have standing to pursue relief

in federal court. See, e.g., In re Prudential Ins. Co. Am.

Sales Prac. Litig. Agent Actions, 148 F.3d 283, 307 (3d

Cir. 1998). These courts do so even though class

certification necessarily renders those members

parties to the case who seek individualized monetary

relief.

Other courts forbid the certification of classes

that include any uninjured members. Pet. 14–16. Still

others permit class certification only if the number of

uninjured members is not excessive. Id. at 16–19. But

these courts differ over the extent to which a class may

encompass uninjured members before class treatment

is no longer appropriate, with some courts (like the

Ninth Circuit) adopting especially lax standards that

fail to weed out large swaths of uninjured members.

See id.

This Court should hold that district courts

cannot certify a damages class where it includes any

uninjured members. During the class-certification

stage, named plaintiffs must present evidence

demonstrating that each and every class member

suffered an injury-in-fact. The Constitution permits

no other conclusion.

Even were that not the case, this Court should

in the alternative hold that, under Rule 23(b)(3)’s

plain language, class certification is improper where

4

the number of uninjured members is more than de

minimis. This limitation precludes class certification

unless no more than a tiny fraction (for example, 1%

or less) of the class consists of uninjured members. The

de minimis standard cannot be satisfied unless named

plaintiffs present a case-specific, administratively

feasible mechanism for sifting out uninjured members

as the litigation progresses—a method that must

preserve a defendant’s constitutional right to present

individualized challenges to class members’ standing.

──────────

ARGUMENT

I.

Article III prohibits the certification of

class actions that include any uninjured

class members.

A.

Article III requires that each class

member have standing at the classcertification stage.

Article III “limits the jurisdiction of federal

courts to ‘Cases’ and ‘Controversies.’” Susan B.

Anthony List v. Driehaus, 573 U.S. 149, 157 (2014).

This restriction requires plaintiffs to “establish that

they have standing to sue” in federal courts. Clapper

v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013). “[T]he

‘irreducible constitutional minimum’ of standing

consists of three elements.” Spokeo, Inc. v. Robins, 578

U.S. 330, 338 (2016) (citation omitted). “First and

foremost, there must be alleged (and ultimately

proved) an ‘injury in fact’—a harm suffered by the

plaintiff that is ‘concrete’ and actual or imminent,’ not

‘conjectural’ or ‘hypothetical.’” Steel Co. v. Citizens for

5

a Better Env’t, 523 U.S. 83, 103 (1998) (citations

omitted). “Second, there must be causation—a fairly

traceable connection between the plaintiff’s injury and

the complained-of conduct of the defendant.” Id. “And

third, there must be redressability—a likelihood that

the requested relief will redress the alleged injury.” Id.

Because the “usual rule” in federal courts

permits “litigation [to be] conducted by and on behalf

of the individual named parties only,” Wal-Mart

Stores, Inc. v. Dukes, 564 U.S. 338, 348 (2011), the

focus of the standing requirement is ordinarily easy to

identify. The individual plaintiff must show “personal

injury fairly traceable to the defendant’s allegedly

unlawful conduct and likely to be redressed by the

requested relief.” Raines, 521 U.S. at 818. But Federal

Rule of Civil Procedure 23 is an exception to the usual

rule, permitting a plaintiff in certain narrowly defined

circumstances to represent the interests of absent

class members. See Wal-Mart, 564 U.S. at 348–49.

“That a suit may be a class action,” however,

“adds nothing to the question of standing.” Spokeo,

578 U.S. at 338 n.6. Article III applies with full force

to class actions, including to absent members

represented by named plaintiffs. TransUnion, 594

U.S. at 430–31.

Consequently, “a class cannot be certified if it

contains members who lack standing.” Avritt v.

Reliastar Life Ins. Co., 615 F.3d 1023, 1034 (8th Cir.

2010). Named plaintiffs cannot be permitted to

represent a class that includes those who “lack the

ability to bring a suit themselves” in federal court. Id.

6

Any conclusion to the contrary would contravene

Article III.

Article III does not exempt anyone—and

certainly not an absent class member—from the

obligation to establish the existence of a case or

controversy. To the contrary, any “party” invoking a

federal court’s jurisdiction must demonstrate the

requisite standing—including an injury-in-fact caused

by the challenged conduct—to satisfy the case-orcontroversy requirement. Wittman, 578 U.S. at 543

(emphasis added); accord Valley Forge Christian Coll.

v. Am. United for Separation of Church and State, Inc.,

454 U.S. 464, 472 (1982) (holding that Article III

requires a “party” to “show that he personally has

suffered some actual or threatened injury as a result

of the putatively illegal conduct of the defendant”). In

short, an “Article III case or controversy is one where

all parties have standing.” Mausolf v. Babbitt, 85 F.3d

1295, 1300 (8th Cir. 1996).

This necessarily means named plaintiffs must

demonstrate absent class members have standing

when seeking to certify a class. This is so because if a

federal case is certified as a class action the absent

members become parties to the lawsuit. Devlin v.

Scardelletti, 536 U.S. 1, 9–10 (2002); accord United

States v. Sanchez-Gomez, 584 U.S. 381, 387 (2018)

(explaining that absent class members are considered

parties once the class is certified). Like any other

party, each and every member must have standing to

seek relief—particularly damages—in federal court.

TransUnion, 594 U.S. at 431. This is why, following

class certification, this Court considers all of the class

7

members—including the absent members—to be

“plaintiffs” in the federal case. See id. at 430–39

(“determin[ing] whether the 8,185 class members

have standing to sue” and concluding “6,332 plaintiffs”

who were absent members lacked standing).

Thus, courts cannot certify a class that includes

any absent members who lack the requisite injury-infact. Doing so would unconstitutionally inject into the

litigation new plaintiffs over whom the courts lack

jurisdiction. “Those who do not possess Art[icle] III

standing may not litigate as suitors in the courts of the

United States.” Valley Forge, 454 U.S. at 475–76.

“Every party that comes before a federal court must

establish it has standing to pursue its claims.” Cibolo

Waste, Inc. v. City of San Antonio, 718 F.3d 469, 473

(5th Cir. 2013) (emphasis added). Each and every class

member must be shown to have suffered the injury-infact necessary to have standing before they can be

added as parties to the lawsuit through the

certification of a damages class.

B.

Absent class members cannot

circumvent Article III at the classcertification stage by relying on the

standing of named plaintiffs.

Respondents insist that courts may certify a

class, regardless of whether the class includes

uninjured members, as long as one of the named

plaintiffs has standing. Brief in Opp’n to Pet. for Writ

of Cert. 16. But the authority they rely on—Town of

Chester v. Laroe Estates, Inc., 581 U.S. 433 (2017)—

said no such thing. To the contrary, Laroe Estates

8

confirms class certification is inappropriate unless

each absent member has standing.

The passage that Respondents cite from Laroe

Estates simply says: “At least one plaintiff must have

standing to seek each form of relief requested in the

complaint.” 581 U.S. at 439. That a particular plaintiff

must have standing to seek specific relief does not

mean other parties who lack standing may likewise

seek the same, or any other, relief—particularly when

damages are the relief at issue. Laroe Estates does not

say otherwise, nor have Respondents cited any

authority for such a remarkable proposition.

Indeed, this Court’s case law contradicts

Respondents’ premise. When confronting a lawsuit

seeking damages, this Court has analyzed whether

each plaintiff has standing to sue. See Gladstone

Realtors v. Village of Bellwood, 441 U.S. 91, 95, 109–

16 (1979) (holding that some, but not all, of the

plaintiffs had standing to sue, where they sought

damages among other relief).

Notably, the cases in which this Court has

elected not to consider whether each plaintiff has

standing before reaching the merits typically involved

requests for generalized equitable relief rather than

damages. See, e.g., Clinton v. City of New York, 524

U.S. 417, 421, 425 n.9, 431 n.19 (1998) (concluding

there was no need to consider the standing of every

plaintiff where all plaintiffs sought the same

declaratory judgment that the Line Item Veto Act was

unconstitutional).

9

This practical approach is understandable,

since a victory by even one of several plaintiffs secures

the same relief sought by every plaintiff, regardless of

whether each had standing. But see Aaron-Andrew P.

Bruhl, One Good Plaintiff Is Not Enough, 67 Duke L.J.

481, 483–86, 514–47, 552–53 (2017) (criticizing this

so-called “one-plaintiff rule” because “it is inconsistent

with the Constitution and the larger web of standing

doctrine,” and calling upon the Court to “stop using

it”). In Clinton, for example, this Court’s

determination that the Line Item Veto Act was

unconstitutional had precedential force across the

nation, regardless of whether only some of the

plaintiffs had standing to secure this declaratory

relief.

Regardless of how this Court treats standing in

lawsuits seeking generalized equitable relief, a federal

court may certify a distinct damages class under Rule

23(b)(3) only where each and every member has been

shown to have standing. See TransUnion, 594 U.S. at

431 (“Every class member must have Article III

standing in order to recover individual damages”); 15

James Wm. Moore, Moore’s Federal Practice § 101.23

(3d ed. 2024) (explaining that “to qualify for the award

of damages each plaintiff must establish injury” and

thus any approach declining to consider whether each

plaintiff has standing “must logically be confined to

suits in which generalized equitable relief is sought.”).

Laroe Estates confirms this rule. There, land

developer Steven Sherman sought damages against a

town for the taking of his interest in property. 581 U.S.

at 435–37, 440. A real estate company moved to

10

intervene, requesting that damages be awarded to the

company. Id. at 436–37, 440. This Court rejected the

notion that the company could be added to the lawsuit

via intervention without first showing it had standing

to sue for its own money damages. Id. at 438–42. The

Court held that a party seeking intervention “must

have Article III standing in order to pursue relief that

is different from that which is sought by a party with

standing,” which meant the company needed to show

standing before it could intervene to pursue damages

for itself rather than for the developer. Id. at 440.

Much as in Laroe Estates, the certification of a

damages class necessarily involves the addition of

absent class members as new parties who seek

damages for themselves rather than money due to the

named plaintiffs. “[A] nonnamed class member is [not]

a party to the class-action litigation before the class is

certified.” Smith v. Bayer Corp., 564 U.S. 299, 313

(2011). But once a class is certified under Rule 23, the

absent members are added as parties to the lawsuit,

Devlin, 536 U.S. at 9–10; accord Sanchez-Gomez, 584

at 387, thus becoming plaintiffs themselves, see

TransUnion, 594 U.S. at 437. This is what “gives an

Article III court the power to ‘render dispositive

judgments’ affecting unnamed class members.” Flecha

v. Medicredit, Inc., 946 F.3d 762, 770–71 (5th Cir.

2020) (Oldham, J., concurring) (citation omitted); see

Devlin, 536 U.S. at 10 (holding absent class members

are bound by a judgment because they are parties to

the case following class certification). And when a

court certifies a damages class under Rule 23(b)(3),

these newly added parties each seek individualized

money damages for themselves. See Wal-Mart, 564

11

U.S. at 362 (explaining that Rule 23(b)(3) authorizes

classes seeking “individualized monetary claims,”

with each member having an “individualized claim for

money”).

In other words, for purposes of Article III, the

certification procedure for a damages class does not

meaningfully differ in kind from the intervention

procedure in Laroe Estates. Just as the real estate

company there sought to add itself as a party to pursue

damages for itself, so too does Rule 23(b)(3) afford a

procedure for adding numerous new plaintiffs to a case

so they can seek individualized damages for

themselves. Thus, much like intervention could not be

granted in Laroe Estates unless the real estate

company could first “establish its own Article III

standing,” 581 U.S. at 442, class representatives must

show that each absent member has Article III

standing before a court certifies a damages class to

add these absent members as parties.

C.

Class certification rules do not

permit federal courts to evade

Article III’s strictures.

While several intermediate federal appellate

courts have permitted the certification of class actions

that included uninjured members, they have done so

based on flawed rationales that are at odds with

Article III.

Some courts suggest that Rule 23’s

prerequisites for class certification will protect against

the possibility that uninjured members will ultimately

recover by the end of the case; others maintain that

12

later developments (such as a trial on the merits

following classwide discovery) perform the same

sifting function. See, e.g., Torres v. Mercer Canyons

Inc., 835 F.3d 1125, 1137 (9th Cir. 2016) (asserting

that the presence of uninjured members “does not

necessarily defeat certification of the entire class”

because a “district court is well situated to winnow out

those non-injured members at the damages phase of

the litigation, or to refine the class definition”); Kleen

Prods. LLC v. Int’l Paper Co., 831 F.3d 919, 927 (7th

Cir. 2016) (insisting that, at class-certification stage,

named plaintiffs need not show every member was

injured as long as the class does not include “too

many” uninjured members and each member must

“ultimately” show injury “to recover”); DG ex rel.

Stricklin v. Devaughn, 594 F.3d 1188, 1197–98, 1201

(10th Cir. 2010) (maintaining that, at classcertification stage, named plaintiffs need not show

absent class members suffered an injury caused by the

defendant in part because “classwide discovery and

further litigation answer th[is] question after

certification”); Prudential, 148 F.3d at 307 (claiming

that whether absent class members are properly in

federal court is an issue of “compliance with the

provisions of Rule 23, not one of Article III standing”).

None of these rationales permit federal courts

to ignore whether absent members satisfy Article III’s

standing requirement at the class-certification stage.

Indeed, these are nothing more than policy

justifications for certifying class actions with

uninjured members notwithstanding Article III’s

strictures. But “policy concerns do not suffice on their

own to confer Article III standing to sue in federal

13

court.” FDA v. All. for Hippocratic Med., 602 U.S. 367,

386 (2024). At any rate, these policy rationales cannot

be squared with Article III for at least two reasons.

1.

Rule 23 cannot be used to evade Article

III’s unalterable standing requirement. Article III

bars Rule 23 from allowing named plaintiffs to litigate

on the merits the claims of absent class members who

lack the constitutional right to proceed in federal court

on the assumption that later developments will

prevent uninjured members from recovering damages.

See Willy v. Coastal Corp., 503 U.S. 131, 135 (1992)

(holding that the Federal Rules of Civil Procedure

cannot “expand the judicial authority conferred by

Article III”). Class actions are nothing more than a

“procedural” mechanism for the “litigation of

substantive claims,” Deposit Guar. Nat’l Bank v.

Roper, 445 U.S. 326, 332 (1980)—a device that does

not itself furnish any substantive rights but instead

provides “only the procedural means by which the

remedy may be pursued,” Shady Grove Orthopedic

Assocs. v. Allstate Ins., 559 U.S. 393, 402 (2010)

(majority opinion). This procedural device “leaves the

parties’ legal rights and duties intact and the rule of

decision unchanged.” Id. at 408 (plurality opinion).

Simply put, “Rule 23’s requirements must be

interpreted in keeping with Article III constraints,

and with the Rules Enabling Act, which instructs that

rules of procedure ‘shall not abridge, enlarge or modify

any substantive right.’” Amchem Prods., Inc. v.

Windsor, 521 U.S. 591, 612–13 (1997) (quoting 28

U.S.C. § 2072(b)). The possibility that the class may

lose on the merits after certification because of a

14

failure to prove injury—or that uninjured members

might otherwise be winnowed out through postcertification proceedings—does not permit uninjured

parties who lack standing to nonetheless litigate the

merits of their claims in federal court merely because

they are absent class members. “[F]ederal jurisdiction

cannot be based on contingent future events.”

Standard Fire Ins. Co. v. Knowles, 568 U.S. 588, 593

(2013). Because “merits question[s] cannot be given

priority over an Article III question,” there is no basis

for “allowing merits questions to be decided before

Article III questions.” Steel Co., 523 U.S. at 97 n.2.

This necessarily means that federal courts may

grant certification only to add injured members to the

lawsuit, and lack jurisdiction to permit uninjured

members to become parties via class certification. See

Laroe Estates, 581 U.S. at 439–42 (holding that party

seeking monetary relief for itself cannot be added to a

case through intervention unless the party first

establishes it has Article III standing).

2.

Rule 23’s prerequisites for class

certification—such as the need to show typicality,

adequacy of representation, or predominance—are not

a substitute for scrutiny of absent members’ Article III

standing at the class-certification stage. Article III’s

requirements and Rule 23’s criteria “spring from

different sources and serve different functions.” 1

William B. Rubenstein, Newberg and Rubenstein on

Class Actions § 2:6 (6th ed. 2022 & Supp. 2024).

The constitutional standing requirement serves

the purpose of “assur[ing] an actual factual setting in

15

which the litigant asserts a claim of injury in fact,” so

that “a court may decide the case with confidence that

its decision will not pave the way for lawsuits which

have some, but not all, of the facts actually decided by

the court.” Valley Forge, 454 U.S. at 472. The

requirement also safeguards against the use of the

judicial process to vindicate the interests of mere

bystanders with no actual injury. Id. at 472–73. This

requirement aims to identify “those disputes which

are appropriately resolved through the judicial

process,” thereby ensuring the federal judiciary is not

“being used to usurp the powers of the political

branches.” Driehaus, 573 U.S. at 157 (citation

omitted).

The purpose of Rule 23 is different. It aims “to

provide a mechanism for the expeditious decision of

common questions.” Cooper v. Fed. Rsrv. Bank of

Richmond, 467 U.S. 867, 881 (1984).

Given these different goals, “[c]are must be

taken, when dealing with apparently standing-related

concepts in a class action context” because, although

“individual standing requirements” and “Rule 23 class

prerequisites . . . appear related, in that they both seek

to measure whether the proper party is before the

court to tender the issues for litigation, they are in fact

independent criteria. . . . Often satisfaction of one set

of criteria can exist without the other.” In re Salomon

Smith Barney Mut. Fund Fees Litig., 441 F.Supp.2d

579, 605 (S.D.N.Y. 2006).

Huber v. Simon’s Agency, 84 F.4th 132 (3d Cir.

2023), illustrates how Rule 23’s prerequisites often fail

16

to effectuate Article III’s standing requirement. There,

the defendant argued that the district court erred in

certifying a class because the named plaintiff failed to

demonstrate each of the absent class members had

standing. Id. at 151. But the Third Circuit insisted

that it was unnecessary for “each member to prove his

or her standing” before the class could be certified. Id.

at 155. In doing so, the Third Circuit acknowledged

that some class members might lack standing. Id. Yet

the court concluded that the question of whether

certification was justified under Rule 23(b)(3) should

instead focus on whether the proposed class could be

certified “notwithstanding the individualized evidence

class members must submit to demonstrate standing

and recover damages.” Id. at 158. The court decided

that “if there is a plausible straightforward method to

sort” out class members without standing “at the back

end of the case, then the class might appropriately

proceed as it is currently defined.” Id. at 157–58. This

was so, in the Third Circuit’s view, because the

“presence of individual questions does not per se rule

out a finding” that Rule 23(b)(3)’s prerequisites for

class certification could be satisfied. Id. at 156.

Rule 23’s requirements in Huber failed to

safeguard Article III’s purpose of ensuring federal

courts preside over litigation involving only proper

parties who were actually injured and not mere

bystanders. The Third Circuit allowed a class to be

certified, even though it included uninjured members,

as long as Rule 23’s criteria were satisfied because

“common, aggregation-enabling issues” were “more

prevalent or important than the non-common,

aggregation-defeating individual issues.” Id. at 156.

17

According to the Third Circuit, if each member could

establish standing by the remedial phase of the case—

well after the parties had litigated the merits—

standing problems would not derail class treatment.

Article III forecloses this approach. See Steel

Co., 523 U.S. at 97 n.2 (holding that Article III does

not permit the determination of merits questions

before Article III questions). Allowing courts

improperly to “reach a merits question when there is

no Article III jurisdiction opens the door to all sorts of

‘generalized grievances,’ that the Constitution leaves

for resolution through the political process.” Id.

(citation omitted).

And in reality, it is highly unlikely uninjured

members will be sifted out by an eventual remedial

phase. “[A]s a practical matter, that day will likely

never come to pass because class action cases almost

always settle once a court certifies a class.” Olean

Wholesale Grocery Coop., Inc. v. Bumble Bee Foods,

LLC (Olean II), 31 F.4th 651, 686 (9th Cir. 2022) (en

banc) (Lee, J., dissenting). When courts certify a class

with uninjured members, courts allow “plaintiffs to

weaponize Rule 23 to impose an in terrorem effect” by

“dramatically expand[ing] the potential exposure and

artificially jack[ing] up the stakes.” Id. at 691 (Lee, J.,

dissenting). This “often, if not usually,” leads “to a

substantial settlement by the defendant because the

costs and risks of litigating are so high.” Id. (Lee, J.,

dissenting) (citation omitted). “Punting the key

question [of each member’s standing] until later

amounts to handing victory to plaintiffs because th[e]

case will likely settle without the court ever deciding”

18

whether it had jurisdiction over every party. Id. at 686

(Lee, J., dissenting).

Since “there is a fundamental analytical

distinction between” Rule 23’s prerequisites for class

certification and “Article III standing,” In re Aggrenox

Antitrust Litig., 94 F.Supp.3d 224, 250 (D. Conn.

2015), courts cannot be permitted to replace an

examination of whether each member has standing

during the class-certification stage with an analysis of

whether Rule 23’s prerequisites are satisfied. This

Court has always insisted on strict compliance with

standing requirements because they serve the

constitutional separation of powers by “keeping the

Judiciary’s power within its proper constitutional

sphere.” Raines, 521 U.S. at 819–20. In this era of

frequent class actions, “courts must be more careful to

insist on the formal rules of standing, not less so.”

Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S.

125, 146 (2011).

D.

Article III requires named plaintiffs

to present evidence showing each

absent class member has been

injured.

Some courts maintain that a damages class can

be certified without evidence that each class member

has standing. See Rubenstein, supra, § 2:3. They do so

for a practical reason, insisting that it would be

unworkable for judges to determine as part of the

class-certification inquiry whether each member

sustained an injury. See, e.g., Parko v. Shell Oil Co.,

739 F.3d 1083, 1084–85 (7th Cir. 2014). According to

these courts, this inquiry would “put the cart before

19

the horse” because the question of whether each class

member suffered an injury-in-fact turns on whether

each has proven a “valid claim,” which is an “issue to

be determined after the class is certified.” Id. at 1085.

As we now explain, this view fundamentally

misunderstands the nature of the standing inquiry

mandated by Article III, and in any event

overestimates the difficulties involved in assessing

standing during the class-certification stage.

1.

Even assuming an evidentiary inquiry

into whether each member was injured entails

significant burdens, that practical concern does not

permit courts to avoid determining whether each

member has standing. “[C]onsiderations of practical

judicial policy cannot overcome the Constitution’s

mandates.” All. for Hippocratic Med., 602 U.S. at 405

(Thomas, J., concurring); see id. at 386 (majority

opinion). Absent this inquiry, courts will exercise

jurisdiction over contested merits issues as the class

action progresses following certification. Article III

precludes courts from assuming such “hypothetical

jurisdiction,” as it “produces nothing more than a

hypothetical judgment—which comes to the same

thing as an advisory opinion, disapproved by this

Court from the beginning.” Steel Co., 523 U.S. at 101.

2.

The standing inquiry mandated by

Article III requires evidentiary proof of each member’s

standing at the class-certification stage. Since the

elements of standing, including injury-in-fact, “are not

mere pleading requirements but rather an

indispensable part of the plaintiff’s case, each element

20

must be supported in the same way as any other

matter on which the plaintiff bears the burden of

proof, i.e., with the manner and degree of evidence

required at the successive stages of litigation.” Lujan

v. Defs. of Wildlife, 504 U.S. 555, 561 (1992) (emphasis

added).

Early in the case, at the pleading stage,

“general factual allegations of injury resulting from

the defendant’s conduct may suffice, for on a motion to

dismiss [courts] ‘presum[e] that general allegations

embrace those specific facts that are necessary to

support the claim.’” Id. (citation omitted). But once a

case proceeds beyond the pleading stage, plaintiffs can

no longer rest on mere allegations and must present

evidence of injury-in-fact. Id.

As a result, when named plaintiffs seek class

certification, the Constitution requires them to

present evidence of each member’s standing. This is so

because “Rule 23 does not set forth a mere pleading

standard.” Wal-Mart, 564 U.S. at 350. Instead, named

plaintiffs must justify certification based on evidence,

so courts must often “probe behind the pleadings” in

deciding whether to certify a class. Id.; see Harnish v.

Widener Univ. Sch. of L., 833 F.3d 298, 304 (3d Cir.

2016) (holding that named plaintiff cannot satisfy

Rule 23 “without any evidentiary support”). Named

plaintiffs seeking to certify a damages class must

therefore demonstrate, through evidence, that each

member suffered an injury-in-fact. In re Rail Freight

Fuel Surcharge Antitrust Litig. (Rail Freight I), 725

F.3d 244, 252 (D.C. Cir. 2013).

21

3.

Conducting this evidentiary inquiry into

each member’s standing at the class-certification

stage does not put the cart before the horse by calling

on the court to decide the merits of a claim. Whether a

member has standing does not determine the merits

of any claim. Byrd v. United States, 584 U.S. 395, 410–

11 (2018) (holding that Article III standing “is

jurisdictional and must be assessed before reaching

the merits”); see FEC v. Cruz, 596 U.S. 289, 298 (2022)

(“For standing purposes, we accept as valid the merits

of [plaintiffs’] legal claims.”).

4.

Requiring federal courts to make an

evidentiary determination as to whether each member

has standing at the class-certification stage is not

unworkable.

To begin with, the inquiry does not require

proof that each member has a valid claim. See Cruz,

596 U.S. at 298 (assuming as true the merits of

plaintiffs’ claims for standing purposes). Rather, the

evidence must demonstrate no more than that each

member suffered some concrete harm. See

TransUnion, 594 U.S. at 417. There is little if any

reason to think courts would be unable to examine the

evidence to see if each member satisfied this standard.

In fact, this Court recently conducted precisely this

type of analysis. See id. at 430–42 (determining the

standing of all 8,185 class members by examining

whether the evidence demonstrated each had suffered

a concrete harm). Surely district courts, which are

even better positioned to examine evidence in the first

instance, are at least as well-equipped to do the same.

22

Nor is there anything unworkable about

requiring class representatives to present evidence of

each member’s standing at the certification stage and

demanding that courts assess whether this evidence

shows all members suffered an injury. This Court has

approved the use of representative evidence in class

actions, Tyson Foods, Inc. v. Bouaphakeo, 577 U.S.

442, 459–60 (2016)—for example, statistical

methodologies, id.—as long as the evidence does not

amount to an improper “Trial by Formula” that

deprives a defendant of the right to litigate its

individualized defenses, Wal-Mart, 564 U.S. at 367,

and is proper under governing evidentiary standards

(such as Federal Rule of Evidence 702 and Daubert v.

Merrell Dow Pharm., Inc., 509 U.S. 579 (1993)), see

Tyson Foods, 577 U.S. at 459–60. Although Tyson

Foods allowed representative evidence to prove

classwide liability under certain circumstances, 577

U.S. at 459–60, such evidence might equally suffice to

show standing at the certification stage and thereby

ease the burden this determination supposedly

entails, see id. at 460–62 (remanding for the parties to

litigate in the district court whether there was a

representative methodology that could successfully

identify uninjured class members). In fact, lower

courts already permit statistical methodologies

developed by experts to show, at the class-certification

stage, whether class members have been injured, as

long as these methodologies can withstand

evidentiary scrutiny. See, e.g., Rail Freight I, 725 F.3d

at 252–55; In re Rail Freight Fuel Surcharge Antitrust

Litig. (Rail Freight II), 292 F.Supp.3d 14, 54–59, 91,

107–08, 132–41 (D.D.C. 2017).

23

Of course, defendants must be allowed to

contest such expert testimony. See, e.g., In re

Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 322–

25 (3d Cir. 2008). “Expert opinion with respect to class

certification” must be subject to “rigorous analysis.”

Id. at 323. If a defendant contests an expert’s opinion,

the district court must weigh all the evidence, resolve

any disputes between the parties’ experts or disputes

over an expert’s credibility, and determine whether

“the testimony of either (or neither) party’s expert” is

persuasive. Id. Consequently, “[i]n its rigorous

analysis of the evidence presented” by experts, district

courts “not only must determine which evidence is

most persuasive,” but also “resolve any factual

disputes between the experts.” Rail Freight II, 292

F.Supp.3d at 90.

Ultimately, district courts must decide at the

class-certification stage whether expert testimony

presented by named plaintiffs has established,

“through common evidence, that all class members

were in fact injured.” Rail Freight I, 725 F.3d at 252

(emphasis added); cf. Wal-Mart, 564 U.S. at 350

(holding that class treatment is appropriate only

where issues central to each claim are “capable of

classwide resolution” in “one stroke”). The expert’s

methodology must “reliably prove that each putative

class member suffered individual injury.” In re

Aluminum Warehousing Antitrust Litig., 336 F.R.D. 5,

56 (S.D.N.Y. 2020).

For that matter, even absent representative

evidence, it is far from clear that it would be

unworkable for named plaintiffs to show each

24

member’s standing by submitting affidavits from

every member at the certification stage. Before trial,

parties can show standing “by affidavit or other

evidence of ‘specific facts,’” even if these are contested.

Bennett v. Spear, 520 U.S. 154, 168 (1997) (citation

omitted). Thus, contrary to the suggestion of some

courts, see Parko, 739 F.3d at 1085, allowing named

plaintiffs to show each member’s standing via

affidavits submitted in support of class certification

would not require any “trials.” And if these courts

instead mean to suggest that the need to review

numerous affidavits would be burdensome, that would

add nothing new to the certification process, which

already involves the presentation (and review) of

voluminous evidence. See Fred Fresard et al., For

Proper Risk Management: Doing Business in the U.S.

and Canada, 55 No. 11 DRI For the Defense 82, 86

(2013) (“Class certification motions typically involve

extensive briefing by each side, and voluminous

deposition transcripts, documents produced by the

parties, and expert reports usually support the

briefs.”).

Besides, any purported burdens associated with

requiring named plaintiffs to submit, and courts to

review, numerous affidavits at the certification stage

are typically consequences of named plaintiffs’ own

making. The extent of this supposed burden in a

particular case will likely depend on how broadly or

narrowly named plaintiffs define their proposed class.

The broader the class, the larger the number of class

members involved and the more affidavits are needed.

To minimize the burden, both on themselves and the

court, named plaintiffs need only define the class more

25

narrowly. Cf. Thornley v. Clearview AI, Inc., 984 F.3d

1241, 1248 (7th Cir. 2021) (explaining that the named

plaintiff in a class action “controls her own case” and

may offer “a class definition that is narrower than it

might have been”).

For example, Respondents here sought to

certify a damages class of all legally blind individuals

who visited Labcorp facilities with express self-service

kiosks in California during the class period and were

exposed to the kiosks. See Pet. Br. 7–8; J.A. 381–82.

But nothing prevented Respondents from seeking the

certification of a narrower class—for example, a class

of members who visited such kiosks in just a few

locations during a relatively short time period. Had

Respondents done so, the burden to show each

member had standing through affidavits would likely

have been straightforward. But Respondents

presumably sought to inflate the class size to magnify

the amount of a damages award (and corresponding

attorney’s fees award). As this Court has emphasized,

however, the “desire to obtain (sweeping relief) cannot

be accepted as a substitute for compliance” with the

“requirement of concrete injury” imposed by Article

III. Schlesinger, 418 U.S. at 221–22.

As for the burden the standing inquiry might

impose on district courts at the certification stage, this

Court has already recognized that evidence must show

each class member has standing by the end of the case,

and the Court itself undertook the burden of analyzing

whether thousands of members had standing in

TransUnion following a full-blown trial. 594 U.S. at

421–22, 430–39. It is implausible to believe district

26

courts would be unable to undertake a similar

standing analysis at the certification stage—

especially since named plaintiffs can readily mitigate

any major burden by narrowly defining their class or

relying on adequate and admissible representative

evidence.

****

In sum, Article III prohibits courts from

certifying class actions under Rule 23(b)(3) unless and

until named plaintiffs present common evidence, at

the class-certification stage, that each member

suffered some concrete harm.

II.

Alternatively, federal courts cannot

certify a class that includes more than a de

minimis number of uninjured members.

A.

Due to constitutional and statutory

constraints, Rule 23(b)(3) forbids

class

certification

where

the

number of uninjured class members

is more than de minimis.

Even assuming for the sake of argument that a

damages class action could be certified where the class

includes members who suffered no injury, the

Constitution, the Rules Enabling Act, and Rule

23(b)(3) prohibit the certification of a class that

includes more than a de minimis number of uninjured

members.

Constitutional due process requires that

defendants have an opportunity to present every

available defense. Lindsey v. Normet, 405 U.S. 56, 66

27

(1972). Thus, the Rules Enabling Act prohibits

certification where class treatment would deprive

defendants of their opportunity to litigate

individualized defenses. Wal-Mart, 564 U.S. at 367.

This applies to Article III’s standing

requirement, since defendants have the right to

challenge each party’s standing. See Gwaltney of

Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484

U.S. 49, 65–66 (1987), superseded by statute on

another ground, Clean Air Act, Pub. L. No. 101–549,

103 Stat. 2574. Because “standing is not dispensed in

gross,” TransUnion, 594 U.S. at 431, and instead

mandates an inquiry into “individualized harm,”

United States v. Hays, 515 U.S. 737, 744 (1995), a

standing challenge will unavoidably require an

individualized inquiry into whether each member

suffered an injury-in-fact.

Even if Article III permitted this inquiry to

occur following the litigation of the merits after class

certification (it does not), Rule 23(b)(3)’s plain

language bars the certification of a damages class if

the anticipated individualized inquiries into standing

will require numerous mini-trials.

Under this provision, a damages class action

cannot be certified unless “the questions of law or fact

common to class members predominate over any

questions affecting only individual members.” Fed. R.

Civ. P. 23(b)(3). This Court interprets such federal

rules based on the ordinary meaning of their plain

language. See, e.g., Bowman Dairy Co. v. United

States, 341 U.S. 214, 220 (1951).

28

The word “common” from Rule 23(b)(3)

ordinarily means “belonging to or shared . . . by all

members of a group.” Common, Merriam-Webster’s

Collegiate Dictionary (11th ed. 2007). And the word

“predominate” ordinarily means “to hold advantage in

numbers or quantity.” Predominate, MerriamWebster’s Collegiate Dictionary (11th ed. 2007).

Consequently, as a panel of the Ninth Circuit

correctly explained before the court erroneously

reached a different conclusion en banc, “Rule 23(b)(3)

requires that questions of law be shared by

substantially all class members, and these common

questions must be superior in strength or

pervasiveness to individual questions within the

class.” Olean Wholesale Grocery Coop., Inc. v. Bumble

Bee Foods, LLC (Olean I), 993 F.3d 774, 792 (9th Cir.

2021), vacated for reh’g en banc, 5 F.4th 950 (9th Cir.

2021) (mem.); accord, Olean II, 31 F.4th at 687 (Lee,

J., dissenting).

Given the plain meaning of these words and the

inherently individualized nature of the standing

inquiry mandated by due process and the Rules

Enabling Act, Rule 23 cannot permit the certification

of a class with more than a de minimis number of

uninjured members. See Olean II, 31 F.4th at 692

(Lee, J., dissenting); Olean I, 993 F.3d at 792–93.

Unless the class “include[s] only (or mostly only)

people who have suffered an injury,” “it follows that

‘common’ issues would not ‘predominate,’ as required

under the text of Rule 23.” Olean II, 31 F.4th at 692

(Lee, J., dissenting); see Rail Freight I, 725 F.3d at

252–53 (holding that, unless there is a “reliable means

29

of proving classwide injury in fact,” the case “turns on

individualized proof of injury” and thus “separate

trials are in order”).

Some courts nonetheless maintain that Rule

23(b)(3) permits class certification as long as the class

does not include “a great many persons who have

suffered no injury at the hands of the defendant.”

Messner v. Northshore Univ. HealthSystem, 669 F.3d

802, 825 (7th Cir. 2012); accord, e.g., Olean II, 31 F.4th

at 669 & n.14 (allowing certification where the class

does not include “a great number of members who for

some reason could not have been harmed” even if this

“includes more than a de minimis number of uninjured

class members” (citation omitted)); J.A. 397 n.1

(applying Olean II here).

This mistaken approach shows why Rule

23(b)(3) does not permit the certification of a class

where the number of uninjured members is more than

de minimis. The amorphous standard endorsed by

decisions like Messner, Olean II, and the Ninth

Circuit’s opinion here tends to result in certified

classes with enormous numbers of potentially

uninjured members. See, e.g., In re EpiPen

(Epinephrine Injection USP) Mktg. Sales Prac. &

Antitrust Litig., No. 17-md-2785, 2020 WL 1180550, at

*13, *32, *34–37 (D. Kan. Mar. 10, 2020) (certifying

damages class consisting of at least hundreds of

thousands of consumers, of whom up to 5% suffered no

injury); In re Nexium Antitrust Litig., 777 F.3d 9, 32–

33 & n.29 (1st Cir. 2015) (Kayatta, J., dissenting)

(criticizing majority opinion for allowing the

30

certification of a class that could include as many as

24,000 uninjured consumers).

This cannot be squared with Rule 23’s text

permitting a damages class only where “common”

issues “predominate” over individualized issues.

Where hundreds or thousands of mini-trials are

necessary to assess whether particular class members

were injured, common issues necessarily cannot be

found to predominate over individualized issues. See,

e.g., In re Rail Freight Fuel Surcharge Antitrust Litig.

(Rail Freight III), 934 F.3d 619, 620, 623–24 (D.C. Cir.

2019) (holding that the need to determine which of

thousands of class members were injured meant

common issues did not predominate); In re Asacol

Antitrust Litig., 907 F.3d 42, 46–47, 51–58 (1st Cir.

2018) (refusing to permit certification of a damages

class in which thousands of class members would need

to testify about whether they were injured).

Hence, if the Constitution, the Rules Enabling

Act, and Rule 23’s text authorize the certification of a

class that includes any percentage of uninjured

members (they do not), the number of such members

“must,” at the very least, “be de minimis.” Olean I, 993

F.3d at 792.

31

B.

Named plaintiffs must comply with

stringent criteria before they can

demonstrate class certification is

warranted under this de minimis

standard.

This de minimis standard cannot be satisfied

unless named plaintiffs first comply with the following

criteria.

1.

Named plaintiffs must demonstrate “how

many class members (or what proportion of them)”

were injured. Cordoba v. DirecTV, LLC, 942 F.3d

1259, 1275 (11th Cir. 2019). “Article III does not give

federal courts the power to order relief to any

uninjured plaintiff, class action or not.” TransUnion,

594 U.S. at 431. Unless the district court is informed

how many members are injured and how many are

not,

the

court

cannot

determine

whether

individualized inquiries into each member’s standing

will eventually predominate when the time comes to

decide if each member has the standing necessary to

receive relief. See Cordoba, 942 F.3d at 1274–75.

2.

Named plaintiffs must also demonstrate

“there is a plausible straightforward method” to

determine which class members were injured. Id. at

1275. This is so because “a class cannot be certified

based on an expectation that the defendant will have

no opportunity to press at trial genuine challenges to

allegations of injury-in-fact.” Asacol, 907 F.3d at 58;

see id. at 53 (holding that the mechanism proposed by

named plaintiffs cannot “jettison[] the rules of

evidence and procedure, the Seventh Amendment, or

the dictate of the Rules Enabling Act”). And since a

32

damages class action must also be manageable, see

Fed.R.Civ.P. 23(b)(3)(D); Eisen v. Carlisle &

Jacquelin, 417 U.S. 156, 164 (1974), the method

proposed by named plaintiffs must be “both

‘administratively feasible’ and ‘protective of

defendants’ Seventh Amendment and due process

rights.” Asacol, 907 F.3d at 51–52 (emphasis added;

citation omitted).

In other words, named plaintiffs must enable

the district court, “at the time of certification,” to

provide “a reasonable and workable plan” for affording

defendants an opportunity to challenge whether

individual class members suffered an injury-in-fact,

and this plan must be “protective of the defendant’s

constitutional rights” while not “caus[ing] individual

inquiries to overwhelm common issues.” Id. at 58.

3.

The de minimis standard could 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.

Some lower courts “suggest that 5% to 6%” of a

class “constitutes the outer limits of a de minimis

number of uninjured class members.” Rail Freight II,

292 F.Supp.3d at 137 (collecting cases). Still others

consider even higher percentages of uninjured

members to be de minimis. See, e.g., In re HIV

Antitrust Litig., No. 19-cv-02573, 2022 WL 22609107,

at *5, *24–25 (N.D. Cal. Sept. 27, 2022) (deeming 11%

uninjured class members to be de minimis where the

class consisted of several thousand members). But

that cannot be correct.

33

If 5% of a damages class could consist of

uninjured members, many classes would have

hundreds, thousands, or even hundreds of thousands

of uninjured members. For example, in Rail Freight

III, had 5% of the proposed class (totaling 16,065

members) been uninjured, the class would have

included roughly 803 uninjured members. See 934

F.3d at 623–24.

Worse yet, in this case, applying a 5% threshold

to the roughly 112,140 members of the damages class,

see Pet. Br. 43, would result in approximately 5,607

uninjured class members. A higher percentage—such

as the 11% condoned by the district court in HIV

Antitrust Litigation—would only increase the number

of uninjured members here.

None of these numbers can properly be

considered de minimis. De minimis means “something

that is ‘very small or trifling.’” Groff v. DeJoy, 600 U.S.

447, 468 (2023) (citation omitted). Any suggestion that

hundreds or thousands of uninjured members can be

considered a very small or trifling number beggars

belief. If anything, allowing even 1% of a class to

consist of uninjured members—which, here, amounts

to approximately 1,121 members—would often fall

outside the scope of the de minimis standard. See, e.g.,

Wis. Dept. of Rev. v. Wrigley, 505 U.S. 214, 236 (1992)

(refusing to conclude “several thousand dollars” could

be considered de minimis, since this was a “nontrivial”

amount).

34

──────────

CONCLUSION

This Court should reverse the Ninth Circuit’s

decision and hold that district courts cannot certify a

damages class action where the class includes any

uninjured members, or, alternatively, more than a de

minimis number of uninjured members.

Respectfully submitted,

LAWRENCE S. EBNER

Counsel of Record

ATLANTIC LEGAL

FOUNDATION

1701 PENNSYLVANIA

AVENUE, NW

WASHINGTON, DC 20006

(202) 729-6337

lawrence.ebner@

atlanticlegal.org

FELIX SHAFIR

JOHN F. QUERIO

HORVITZ & LEVY LLP

3601 W. OLIVE AVENUE,

8TH FLOOR

BURBANK, CA 91505

(818) 995-0800

fshafir@horvitzlevy.com

Counsel for Amicus Curiae

March 12, 2025